This case looked at family reunification for unaccompanied children granted refugee status in the UK and Article 8 of the European Convention of Human rights – the right to family and private life.
Article 8 provides the right to family and private life but allows for the interference of this right by public authorities in certain circumstances. In this case the family unit consisted of a mother and her two sons. The older of the siblings (M), now 19 years, arrived in the UK as an unaccompanied minor when aged 16. He had fled Eritrea following the imprisonment of his father, fearing persecution from the Eritrean government. He was initially refused asylum but he was granted refugee status in the UK after appealing his refusal.
M’s mother and younger brother had fled Eritrea separately and were living in Sudan. They had been assisted by the UNHCR to contact the older sibling and, subsequently, to travel to Khartoum to apply for entry clearance to the UK. They were refused on the basis there was no provision in the Immigration Rules to allow them to join M in the UK. This refusal occurred when M was still a child.
The UK government has provisions in the Immigration Rules that allow adults who are recognised as refugees or are granted humanitarian protection to be reunited with their children and partners. However, there are no rules within UK legislation or the Immigration Rules for a child who is a refugee, or has humanitarian protection in the UK, to be reunited with his parents or siblings, or indeed any other family member.
The Upper Tribunal found that in this case there had been a disproportionate interference with the young refugee’s family life on the part of the Home Office and that this could not be justified, particularly due to the detrimental effect of separation on the family; the strength of the family unit; and the best interests of the child.
Relevant points in the judgment
- The decision involved balancing the rights of the family and the right of the state to maintain immigration control. (paragraphs 35 & 40)
- Lesser weight is to be accorded to the Home Office’s balancing exercise under Article 8 where the assessment is general, in contrast to a specific, considered response to the individual circumstances of the case. (paragraph 22)
- As the young refugee in the UK was 17 when the entry clearance application was made by his mother and younger sibling, section 55 of the 2009 Act applied and therefore his best interests were to be a primary consideration – it was found that this duty was not discharged by the Home Office in this case. (paragraph 27)
- The inability of the family to be reunited was found to be contrary to the public interest of strong and stable societies. (paragraph 35)
- The Tribunal also took into consideration the fact that the young refugee’s contribution to UK society was diminished by the lack of reunion and the risk of him being driven to dangerous alternatives was not in his best interests and risk violating his human rights. (paragraph 38)
- Although it was not found that there was an absolute duty to facilitate family reunification in a situation like the young refugee’s family, the principles and policies involved favoured the reunification sought in the appeal. (paragraph 39)
- The Upper Tribunal found that there is no evidence underlying the Home Office assertions that other children would be at risk of being trafficked or exploited to reach the UK so that family members can later join them. (paragraph 41)
- The Tribunal also found that, although there has been some increase in the number of unaccompanied children in the last 2 years, there was no evidence produced of additional pressure on publicly funded children’s services. (paragraphs 41 & 42)
This case highlights the ongoing problems for unaccompanied children in the UK who are granted refugee status or humanitarian protection to reunite with their family. Family is seen as an essential right for refugees and it is unfair that there are provisions for adult refugees to be reunited with partners and children, while child refugees cannot be reunited with parents and siblings. It is therefore important that children in this situation get good quality legal advice and consider making such a reunion application on the basis of Article 8.