The Secretary of State for the Home Department v Have Rexhaj
[2024] EWCA Civ 784
Lojein Abdulrazzak Al Hassan & Ors v Entry Clearance Officer
4 July 2024
[2024] UKUT 234 (IAC)
Upper Tribunal
A Syrian family in Jordan was denied entry to the UK to join their sister who is already a refugee there. The court decided that the risk to the family in Jordan was so high that denying their entry would be unfair, despite immigration rules and financial considerations. They were allowed to join their sister in the UK.
Key Facts
- •Ten Syrian appellants appealed the refusal of their entry clearance applications to join their refugee sister (sponsor) in the UK.
- •Appellants are the sponsor's brother, his wife and children, and her widowed sister and her children.
- •The First-tier Tribunal dismissed the appeals, finding the interference with family life not disproportionate.
- •The Upper Tribunal set aside the First-tier Tribunal's decision, finding errors in its application of the law.
- •The Upper Tribunal remade the decision, allowing the appeals on human rights grounds due to the disproportionate interference with family life given the significant risk of refoulement and harm in Syria or Jordan.
Legal Principles
The jurisdiction of the Human Rights Convention is primarily territorial, but interference with the family life of one member affects all.
SSHD v Abbas [2017] EWCA Civ 1393
In Article 8 cases involving family members abroad, it is not correct to focus exclusively on the sponsor's rights in the UK; the family unit as a whole must be considered.
This case (overturning KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413)
The interests of overseas children are relevant in Article 8 assessments.
This case (overturning KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413)
In proportionality assessments under Article 8, the risk of refoulement and harm abroad is a significant factor.
MA v Denmark [2021] ECHR 628; This case
Section 117B of the Nationality, Immigration and Asylum Act 2002 requires significant weight to be given to the fact that the appellants do not meet the requirements of the Immigration Rules, do not speak English, and would rely on public funds.
Nationality, Immigration and Asylum Act 2002, Section 117B; This case
The public interest in immigration control can be outweighed by a sufficiently strong Article 8 claim, especially in cases of precarious family life, requiring very strong or compelling circumstances.
Agyarko v SSHD [2027] UKSC 11
Outcomes
The Upper Tribunal allowed the appeals.
The refusal of entry clearance was disproportionate given the significant risk of refoulement and harm to the appellants in Syria or Jordan, and the resulting severe disruption or extinction of their family life with the sponsor in the UK. While the appellants did not meet the requirements of the immigration rules and would likely rely on public funds, the risk to their lives and the severe impact on family life outweighed these factors.
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