KF & Ors v The Secretary of State for the Home Department

In an entry-clearance appeal, the relevant Article 8 rights are ordinarily those of the sponsor or other person within the United Kingdom. The proportionality assessment must be intensive and fact-sensitive.

There is no blanket prohibition on family reunion for relatives of refugees who fall outside the Immigration Rules. Failure to meet the Rules remains an adverse public-interest factor. International instruments not incorporated into domestic law may show that an outcome is in harmony with them, but do not themselves attract substantial weight.

Exceptional and compelling circumstances may nevertheless make refusal disproportionate. Severe and deteriorating mental illness, where family reunification is necessary for effective treatment and integration, together with relevant delay in determining asylum status, may outweigh the public-interest factors.

The appellants were the parents and younger siblings of a Syrian refugee living in the United Kingdom. They sought entry clearance to join him after he had reached adulthood. Their applications fell outside the refugee family-reunion provisions of the Immigration Rules and were refused.

The First-tier Tribunal allowed their appeals. Its decision was set aside for error of law in a decision promulgated on 18 June 2019. The Upper Tribunal remade the decision.

The sponsor had experienced serious trauma and had severe post-traumatic stress disorder and major depressive disorder. Unchallenged psychiatric evidence stated that his condition had deteriorated during separation from his family and that reunification was necessary for effective treatment. The central question was whether refusal of entry clearance was a proportionate interference with the sponsor’s private and family life under Article 8.

1. Appeals allowed. The refusal of entry clearance was a disproportionate interference with the sponsor’s private and family life under Article 8 of the ECHR. The Upper Tribunal remade the First-tier Tribunal’s decision but reached the same result.

2. The relevant Convention rights were those of the sponsor, who was within the United Kingdom, rather than the appellants, who were in Jordan. The assessment required an intensive, fact-sensitive balance. The fact that the sponsor was an adult when the entry-clearance decisions were made was relevant, but not determinative.

3. The appellants’ inability to meet the Immigration Rules, their lack of English-language ability, and their likely lack of financial independence were factors favouring refusal. Under Nationality, Immigration and Asylum Act 2002, section 117B, effective immigration control and economic integration were in the public interest. There was nevertheless no prohibition on the admission of relatives of refugees other than spouses and minor children; rather, the Rules made no specific provision for this family’s reunion.

4. The Tribunal treated AT and AHI v Entry Clearance Officer Abu Dhabi as a persuasive, fact-specific example rather than an all-embracing rule. It held that unincorporated international instruments could be relevant because an outcome harmonised with them, following Mathieson v Secretary of State for Work and Pensions [2011] UKSC 4, but they were not to be given substantial weight in their own right.

5. The sponsor’s severe and worsening psychiatric illness was exceptional. The unchallenged evidence showed that medication and trauma-focused therapy were not realistic alternatives before family reunification, and that his extended family and diminishing local-authority support could not provide the required support. The delay in deciding his asylum claim had also deprived him, while still a child, of an earlier opportunity for his best interests to be considered under section 55. That was a relevant, though not independently decisive, factor.

6. On the particular facts, the compelling need for reunification outweighed the adverse public-interest considerations. The anonymity order was continued under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s earlier decision allowing the appeals was set aside for error of law in a decision promulgated on 18 June 2019. On remaking, the Upper Tribunal again allowed the appeals.

• First-tier Tribunal: Allowed the appeals against refusal of entry clearance. Its decision was later set aside for error of law.