Usman Aslam

In the newly reported Upper Tribunal decision in Al Hassan & Ors, my client, a Syrian national, arrived in the UK through a resettlement scheme.

She applied to be reunited with her siblings, as well as her nieces and nephews. This was through the standard family reunion route, outside of the Immigration Rules. Our point, inter alia, was that KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413 (IAC) was wrong in law to only look at the sponsor’s rights, as well as the argument that the risk of refoulement in a family reunion appeal surely has to be the biggest interference in family life.

From the moment KF was reported, one only had to look at Abass v Secretary of State for the Home Department [2017] EWCA Civ 1393 (the case KF seemed to rely upon to say that it is only the sponsor’s Article 8 ECHR rights that are engaged in entry clearance cases) to find that Abbas said the opposite.

The Court of Appeal did not support the proposition that it was only the sponsor’s Article 8 rights that were engaged, rather, their lordships stated that a person outside the territory of an ECHR state may rely upon the family life aspect of Article 8 to secure entry into an ECHR state. The court said that the presence of family members within the territory of the state provided the jurisdictional peg for the purposes of Article 1.

This is backed by various decisions by the Grand Chamber of the European Court of Human Rights. The Grand Chamber also has generally been prepared to find that there was a positive obligation on the part of the Member State to grant family reunification.

Ironically, an interesting point in my case at the hearing was highlighting the Home Office’s own rules on family reunion when looking at exceptional circumstances. At paragraph 7.1 of Appendix Family Reunion (Protection), when the rules cannot be met, they say that the test is whether a refusal “would result in unjustifiably harsh consequences for the applicant or their family member, whose Article 8 rights it is evident from the information provided would be affected by a decision to refuse the application” (my emphasis added).

We were pleased that the Upper Tribunal agreed that KF erred in law (paragraph 24). We were also pleased that the Upper Tribunal judge agreed that Article 3 ECHR can be argued if there is a risk of refoulement for the family members abroad, as there cannot be a bigger interference of family life than death or ill-treatment of family (paragraph 55). Understandably the judge does qualify this by saying “the situation is dynamic” and will be on a case-by-case basis.

We are, of course, delighted to have not only secured entry for 10 linked appellants, but also to have overturned a previously reported decision.

Usman Aslam is a senior associate at Mukhtar & Co Solicitors. This article first appeared on Electronic Immigration Network.