Aminat Saliu v The Entry Clearance Officer

In family-reunion appeals, whether adult children enjoy family life with a parent for Article 8 purposes is ordinarily assessed by reference to the facts at the date of the relevant decision. Love and affection alone are insufficient; real, committed or effective support is required, with no presumption either way. Delay in deciding a sponsoring parent’s asylum claim may sometimes affect the Article 8 balance, but the mere passage of time cannot strengthen family life. A strong or compelling case is generally required to outweigh the public interest in immigration control. Where family life is not established, the proportionality stage is not reached and there is no breach of section 6 of the Human Rights Act 1998.

The appellants were adult Nigerian nationals seeking entry clearance to join their mother, who had obtained refugee status in the United Kingdom. They had remained in Nigeria while their mother’s asylum claim was processed. By the time she obtained refugee status and they applied for entry clearance, they were over 18 and could not satisfy Rule 352D of the Immigration Rules.

The Entry Clearance Officer refused the applications. The First-tier Tribunal rejected the appellants’ factual case and found that Article 8 family life was not engaged. The Upper Tribunal dismissed their appeals. The further appeals concerned whether the exceptional-circumstances test had been applied too narrowly and whether delay in deciding the mother’s asylum claim should have affected the Article 8 assessment or proportionality balance.

Appeals dismissed. Lord Justice Warby gave the judgment, with Lady Justice King and Sir Geoffrey Vos MR agreeing.

1. The first ground disclosed no error of law. “Exceptional circumstances” is a shorthand expression whose meaning is established by R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 and GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630. Properly understood, the test is lawful and compatible with Article 8.
2. Rule 352D of the Immigration Rules was not challenged. The appellants could not satisfy it because their mother did not have refugee status while they were under 18, and they were over 18 when she obtained that status.
3. Whether adult relatives enjoy family life is ordinarily determined by the facts at the date of the relevant decision. There is no presumption that adult children do or do not enjoy family life. Love and affection are insufficient without real, committed or effective support, and the facts require careful examination. The concurrent finding that the appellants did not enjoy Article 8 family life in August 2019 disclosed no legal error.
4. Delay is not decisive but may be relevant in limited ways. It may strengthen an Article 8 claim through the development of closer ties and deeper roots, reduce the precariousness of a person present in the United Kingdom without leave, or reduce the weight of immigration control where a dysfunctional system produces unpredictable, inconsistent and unfair outcomes. None applied here. The appellants were outside the jurisdiction, were not participants in the asylum process, and prolonged separation could not strengthen their family life.
5. In any event, refusal of entry clearance to a person without a legal right to enter pursues the legitimate aim of maintaining immigration control. The public interest is generally strong, so a strong or compelling claim is required to outweigh it. The mere passage of time did not amount to unlawful or unreasonable delay. The court left open, obiter, whether a protracted but lawful process could matter in an appropriate case.
6. The Family Union Directive (2003/86/EC) and A & S v Netherlands, Case C-550/16, did not assist. The United Kingdom was not a party to the Directive, and the appellants had never been unaccompanied minors or held analogous status. The appeals were dismissed.

1. Court of Appeal (Civil Division): Further appeals dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): Judge Hanson dismissed the appeals in a decision promulgated on 13 August 2020.
3. First-tier Tribunal: Judge Lloyd dismissed the appeals in a determination promulgated on 21 August 2019.