Aminat Saliu v The Entry Clearance Officer

The Court of Appeal dismissed the appellants' challenge to decisions of the First-tier Tribunal and the Upper Tribunal refusing entry clearance to join their refugee mother. Key legal principles applied were the Immigration Rules (in particular paragraph 352D), the Family Reunion Guidance, and the statutory duty under section 6 of the Human Rights Act 1998 to act compatibly with Article 8 ECHR. The court reaffirmed that whether Article 8 is engaged is a question of fact at the time of the decision and that the "exceptional circumstances" test in the Guidance reflects the proportionality balancing exercise required by Article 8.

The court determined that delay in the Secretary of State's decision-making concerning the mother's asylum claim did not strengthen the appellants' Article 8 case. Delay can sometimes be relevant to Article 8 claims, but only in specific ways; it does not, in general, enhance the existence or quality of family life when the applicants were outside the jurisdiction and had been separated for many years. The factual findings of the First-tier Judge — that the appellants did not, on the balance of probabilities, enjoy the requisite family life with their mother and that their claims of destitution and mistreatment were not credible — were within the range of permissible findings and were unchallenged as errors of law.

Background and parties: The appellants are adult children of a woman granted refugee status in the United Kingdom. They applied from Nigeria, after they had reached the age of 18, for entry clearance to join their mother. Their applications were refused by an Entry Clearance Officer, upheld by an Entry Clearance Manager, dismissed by the First-tier Tribunal (Judge B Lloyd, determination promulgated 21 August 2019) and dismissed by the Upper Tribunal (Judge Hanson, decision promulgated 13 August 2020). They appealed to the Court of Appeal.

Nature of the claim / relief sought: The appellants sought to challenge the refusals and argued that refusal of entry clearance would breach their rights under Article 8 ECHR, taken with s 6 Human Rights Act 1998, and that exceptional circumstances or compassionate factors justified leave outside the Immigration Rules. They relied on the Secretary of State's Family Reunion Guidance.

Issues framed: (i) Whether the First-tier Tribunal and Upper Tribunal erred by failing to take proper account of the time taken to process the mother's asylum claim; (ii) whether delay in deciding the mother's claim was relevant to engagement of Article 8 or the exceptional circumstances assessment; (iii) ancillary argument whether the First-tier Judge had failed to give proper weight to the earlier findings on the mother's credibility.

Procedural path: Entry Clearance Officer refusal; internal review by Entry Clearance Manager; appeals to the First-tier Tribunal dismissed 21 August 2019; Upper Tribunal dismissed appeal 13 August 2020; permission to appeal to Court of Appeal granted by Laing LJ.

Court's reasoning: The court explained that the Article 8 inquiry as to whether relevant family life exists is primarily factual and concerns the position at the date of the decision. The appellants were adults and had been separated from their mother for many years. The irreducible minimum for adult family life requires real, committed or effective support, which was not established. The court considered authorities on the role of delay in Article 8 cases and accepted that delay can be relevant in three ways identified in EB (Kosovo): (a) ties may strengthen during delay; (b) delay may reduce the sense of precariousness for those present in the jurisdiction; (c) delay may reveal systemic dysfunction weakening the public interest in strict immigration control. None of those categories aided the appellants here: they were outside the UK and their family ties were not shown to have been strengthened by the passage of time; no unlawful or systemic delay was pleaded; and there was no basis to treat the time taken to decide the mother's claim as making refusal disproportionate. The First-tier Judge's adverse factual findings were within the range of permissible inferences and were not shown to be legally wrong.

Conclusion: The appeal was dismissed. The court emphasised that the exceptional circumstances threshold and the Article 8 proportionality balancing remain context- and fact-sensitive; delay in another person's asylum decision does not by itself convert an outside-the-rules refusal into a breach of Article 8.

Appeal dismissed. The Court held that the First-tier Tribunal and Upper Tribunal were entitled to find that the appellants did not enjoy the requisite family life with their mother for Article 8 purposes and that delay in determining the mother's asylum claim did not, in the circumstances, strengthen the appellants' Article 8 claim or render refusal disproportionate. The concurrent factual findings were within the range of conclusions open to the tribunals and no legal error was shown.

Entry Clearance Officer refusals upheld on internal review. Appeals to the First-tier Tribunal were dismissed (Judge B Lloyd; determination promulgated 21 August 2019). Permission to appeal to the Upper Tribunal was granted; the Upper Tribunal (Judge Hanson) dismissed the appeals (decision promulgated 13 August 2020). Permission to appeal to the Court of Appeal was granted by Laing LJ; the Court of Appeal dismissed the appeals on 3 December 2021 ([2021] EWCA Civ 1847).