Lojein Abdulrazzak Al Hassan & Ors v Entry Clearance Officer

In an entry-clearance appeal under article 8, family life must be assessed as a unit. Once family life is established, the tribunal must consider the rights and interests of all affected family members, including those outside the United Kingdom. A serious risk of refoulement, ill-treatment or death may substantially affect the family-life balance where it threatens to disrupt or extinguish family life. Failure to assess those matters collectively may amount to an error of law. The assessment remains intensive and fact-sensitive. Failure to satisfy the Immigration Rules attracts significant public-interest weight, but does not prevent refusal being disproportionate in exceptional circumstances.

The appellants, members of a Syrian family living in Jordan, appealed against refusal of entry clearance to join a relative recognised as a refugee in the United Kingdom. The First-tier Tribunal accepted that family life existed and that the appellants faced serious risks, but dismissed the appeals on proportionality grounds. It treated those risks as bearing mainly on private life and relied on KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413 in focusing on the sponsor’s rights. The Upper Tribunal set aside that decision and remade it. The central issues were whether the appellants’ circumstances formed part of the article 8 family-life assessment and whether refusal of entry clearance was proportionate.

1. Error of law. The First-tier Tribunal’s decision involved a material error. Having accepted that family life existed and that the appellants faced serious risks, it failed to assess the family as a unit and wrongly treated the risks as relevant chiefly to private life. A risk including death, which could extinguish family life, could not properly be given only limited and indirect weight.
2. Article 8 family unit. The Convention’s jurisdiction is primarily territorial, but family life is unitary. Interference with the family life of one member may engage the rights of all family members within the relevant family unit. The court approved and applied the reasoning in SSHD v Abbas [2017] EWCA Civ 1393. KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413 was not authority for an exclusive focus on the UK-based sponsor.
3. Proportionality. The appellants’ failure to meet the Immigration Rules, inability to speak English and likely reliance on public funds attracted significant weight under sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002. Those factors had to be balanced against the established family life, the involuntary and lengthy separation, the best interests of the children, the absence of safe or viable relocation, and the risk of refoulement, discrimination, detention or death.
4. The assessment was necessarily fact-specific. It was not always the case that family life existed between a UK-based sponsor and relatives abroad, nor that refusal would threaten its disruption or destruction. On the preserved findings in this case, however, the refusal of entry clearance was disproportionate.
5. The First-tier Tribunal’s decision was set aside. The appeal was remade and allowed on human rights grounds.

1. Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal decision was set aside for material error of law and the appeal was remade and allowed on human rights grounds.
2. First-tier Tribunal: Judge Komorowski dismissed the appeals against refusal of entry clearance.