Court of Appeal: Entry Clearance Refusals Can Breach Article 8
In Saleh Ahmed Handule Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372 the Court of Appeal confirmed in principle that the right to respect for a person’s pre-existing private life, developed whilst they were in the UK, can be engaged by a refusal of entry clearance sought in order to return to the UK.
Factual Background
The appellant, a national of Somalia, born on 1 July 1990, had entered the UK on 19 April 2000 with his mother and two younger siblings (and later an older sister) under the refugee family reunion Rules. They joined his father, who had been granted refugee status the previous year. All family members were granted indefinite leave to remain in the UK at the same time, in 2004.
The appellant was issued with a UN Refugee Convention travel document, valid from 2004 to 2014. In 2008, he was diagnosed with tuberculosis and received treatment in the UK. On 1 December 2008, he travelled to Djibouti, whose warmer climate would enable him to convalesce. His stated intention was to stay there for a short period before returning to the UK. Nonetheless, he lost his travel document whilst in Djibouti in 2009. In the absence of British consular assistance there, he travelled to Ethiopia and attended the British Embassy in Addis Ababa on 1 September 2009, in order to obtain a new travel document. Despite at least two attempts to seek assistance and furnishing a photocopy of the lost travel document, which his mother had sent him according to her evidence, the Embassy refused to assist him. The Embassy officials were not convinced that the appellant had indefinite leave to remain in the UK and, it subsequently transpired, the Home Office had failed to keep a record of the appellant’s indefinite leave to remain.
As a result, the appellant remained in Ethiopia, undocumented and unable to return to the UK. Other than his father, who left the family home, his mother and siblings acquired British citizenship in his absence. The appellant’s only option was to let his indefinite leave to remain lapse by an absence of more than 2 years from the UK, before applying for entry clearance as a returning resident under (as it was then in force) paragraph 19 of the Immigration Rules. This became possible in principle from December 2010, although, due to the family’s limited means, an entry clearance application was only lodged on 2 May 2015, at which point the appellant had been outside the UK for about 6 ½ years.
The appellant’s former solicitors set out the relevant facts in the application, which was refused by the Entry Clearance Officer on 25 June 2015. The main reason for refusal was the alleged absence of evidence of the appellant’s indefinite leave to remain in the UK and the decision failed to engage with the arguments advanced when addressing the proportionality of the refusal; the appellant was treated as if he had remained outside the UK voluntarily. This decision was not appealed. In 2017, with the assistance of her MP, the appellant’s mother was informed that the Home Office had no record that the appellant had been granted indefinite leave to remain in 2004, despite the fact that all the other members were granted indefinite leave to remain at the same time and the appellant was subsequently issued with a travel document. The appellant’s mother was told that she should have some paperwork in relation to the grant of indefinite leave to remain.
In January 2019, a new application for entry clearance was made on behalf of the appellant, as an adult dependent relative. This application was refused and was appealed to the First-tier Tribunal, by which point the appellant’s private life had become a key feature of the legal argument, although originally the focus was on his family life in the UK. It was argued that the refusal of re-entry, in order to resume his pre-existing life and ties to the UK, which were formed over a significant period of his childhood, was a disproportionate interference with the appellant’s rights under art 8 of the European Convention on Human Rights, particularly as he had no means of establishing a private or family life in Ethiopia, where he had no right to reside.
The First-tier Tribunal Judge dismissed the appellant’s appeal on 28 October 2020. He was not satisfied that the appellant met the requirements of the adult dependent relative category of the Rules, and considered there were no compelling circumstances warranting his admission on the basis of his family life, outside the Rules. The Judge did not proceed to consider the proportionality of any interference with the appellant’s private life, as he had held himself bound by the decision in Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393 to find that the right to respect for the appellant’s private life was not engaged by the refusal of entry clearance. This was notwithstanding the fact that the scope of the decision in Abbas had not been raised or addressed in the refusal letter, the appeal materials or the hearing itself, and that the Home Office Presenting Officer’s argument was that the refusal of entry clearance was not disproportionate under art 8(2).
Permission to appeal to the Upper Tribunal was sought on behalf of the appellant, on the grounds that the First-tier Tribunal Judge had misinterpreted the decision in Abbas. It was pleaded that Abbas is authority for the proposition that art 8 does not impose a positive obligation to grant entry clearance to a non-British citizen, in order for them to develop a private life in the UK. Conversely, the appellant’s case was based on interference with the private life that he had previously developed when living as a settled migrant in the UK. Permission to appeal was refused, with the grounds being described as no more than a disagreement with the findings and an attempt to reargue the appeal. There was no reference to Abbas or other authorities and the private life claim was described as “not arguable”. Whilst the Upper Tribunal’s decision was promulgated on 1 August 2022, it was made on 24 May 2022, and therefore before the restriction on the Cart jurisdiction of section 11A of the Tribunal Courts and Enforcement Act 2007 had come into force.
The appellant made a claim for judicial review under the Cart jurisdiction, permission for which was refused by Lang J. An appeal against that refusal reached the Court of Appeal, following a grant of permission by Newey LJ.
Held
As identified by Andrews LJ, with whose judgment Coulson LJ and King LJ agreed, the issue of principle raised in the appeal was whether the right to respect for private life under art 8 is engaged when a resident non-national who was granted indefinite leave to remain, and whose travel document has been lost or stolen whilst abroad, seeks re-entry to the United Kingdom to resume their life there. In addressing this issue and, by extension, whether the lower courts had erred in law, Andrews LJ considered the ratio of Abbas.
Abbas was not concerned with a scenario in which the appellant had already established a private life in the UK. The appellant was a Pakistani national, living in Pakistan, who had argued that the refusal of entry as a visitor was a disproportionate interference with his right to develop a private life in the UK. Andrews LJ confirmed her agreement with the ratio of Abbas that art 8 does not oblige a state to allow a non-national to enter its territory in order to develop a private life there. This principle is applicable to circumstances in which a non-national without sufficient ties to the UK seeks entry in order to develop a private life in the UK in the future. It is not relevant to a situation concerning the refusal of re-entry after a temporary absence to a settled migrant, such as the appellant in Ali, who, through no fault of his own, is no longer in possession of the travel document proving his immigration status. The appellant was not seeking entry to develop a private life, but to resume a pre-existing private life in the UK ‘which had been curtailed for reasons beyond his control’.
No principled justification was found to exist for distinguishing between cases of expulsion, on one hand, and refusal of admission, on the other, where they concerned settled migrants with an established private life in the UK. In Khan, whilst the Strasbourg Court declared the art 3 aspect inadmissible for lack of jurisdictional competence, given that the applicant was outside the UK, it held the art 8 claim to be manifestly unfounded, as the decision to cancel his leave was clearly proportionate. He had been in the UK on a student visa for less than three years, before he was arrested on suspicion of conspiracy to commit terrorist offences and voluntarily departed. As the proportionality of the decision was assessed, art 8 had been sufficiently engaged. Sargsyan v Azerbaijan (2017) 64 EHRR 4 GC was also raised, where the Strasbourg Court found that the private life aspect of art 8 was engaged in circumstances where the applicant was denied entry to his former home in Azerbaijan, where he had developed most of his social ties and which he had been forced to leave after it was annexed and became part of the Republic of Azerbaijan.
In sum, Andrews LJ held that ‘depending on the facts, the refusal of entry clearance could interfere with a person’s private life developed in the UK sufficiently to engage Article 8, and Abbas does not decide the contrary’. As he was a settled migrant, the refusal of re-entry to resume his private life engaged the appellant’s right to respect for his private life under Article 8, and it was open to him to argue that this interference was disproportionate. The Court did not consider the position of an individual whose private life in the UK is of a more tenuous nature, as that was not within the scope of the appeal.
For this reason, the Court held that the First-tier Tribunal Judge had materially erred in law by misinterpreting Abbas, and the Upper Tribunal Judge and Lang J had erred for failing to recognise this and for refusing permission to appeal and to proceed with the Cart judicial review, respectively. The appeal was allowed and ultimately the case was remitted to the Upper Tribunal in order to assess the appellant’s private life appeal on its merits by determining whether the interference was disproportionate. Whilst the question of proportionality was not a matter for the Court, Andrews LJ indicated an ‘obviously’ relevant consideration: ‘the extraordinary circumstances in which the appellant found himself unable to return within 2 years’.
Comment
Since Abbas was published in 2017 and until this judgment, seven years later, it was often considered that the right to respect for private life could never be engaged in entry clearance cases. It is not clear why this misconception had arisen. As stressed by Andrews LJ, Abbas was strictly concerned with whether there was a positive obligation under art 8 to allow entry to a non-national in order to pursue a private life there. It was in this context that no settled line of authority by the Strasbourg Court had been identified. Conversely, there is Strasbourg authority confirming that a jurisdictional link can result from a pre-existing private life in the Contracting State. At [109] of M.N. and Others v Belgium [2020] ECHR 930, the Strasbourg Court held:
- By way of comparison, the Court emphasises that the above-cited cases are to be distinguished from those in which the facts contained an international element but which did not involve extraterritoriality for the purposes of Article 1 of the Convention. This was the situation with regard to cases under Article 8 concerning decisions taken with regard to individuals, irrespective of whether they were nationals, who were outside the territory of the respondent State but in which the question of that State’s jurisdiction had not arisen, given that a jurisdictional link resulted from a pre‑existing family or private life that that State had a duty to protect (see Nessa and Others v. Finland (dec.), no. 31862/02, 6 May 2003; Orlandi and Others v. Italy, no. 26431/12, 14 December 2017; and Schembri v. Malta (dec.), no. 66297/13, 19 September 2017).
In the preceding paragraph, the Strasbourg Court distinguished such cases from the case of Khan, quoted by Andrews LJ in Ali, where ‘in the absence of other criteria of attachment, the fact that the applicant had brought those proceedings was not sufficient to establish the United Kingdom’s jurisdiction with regard to the risk, alleged by the applicant, that he would be subjected in Pakistan to treatment contrary to Article 3 of the Convention’. Whilst in Khan the art 3 claim was held incompatible ratione loci/personae [28], Strasbourg found the art 8 and 14 claims based on the applicant’s exclusion from the UK to fall within the UK’s jurisdiction for the purpose of art 1 [30]. As Andrews LJ stated, Strasbourg’s finding that the exclusion was clearly proportionate meant that art 8(1) on the basis of private life, in the absence of family life, had been engaged.
It is worth noting that the Court of Appeal’s judgment in Ali was only possible because the Upper Tribunal’s decision refusing permission to appeal was made on 24 May 2022, prior to the coming into force of s 11A of the Tribunal Courts and Enforcement Act 2007 on 14 July 2022, which restricted the Cart jurisdiction. By virtue of s 2(2) of the Judicial Review and Courts Act 2022, s 11A does not apply to Upper Tribunal decisions made before the date on which it came into force. Had the decision been made two months later, the appellant would not have had recourse to the Cart jurisdiction and his case would not have reached the Court of Appeal as a result.
There will be cases, such as Ali, where the First-tier and Upper Tribunal (even the Administrative Court, in Ali) may err on a point of law of general importance or with significant consequences for an appellant. Ali is a shining example of the significance of the Cart jurisdiction, which, prior to its partial ouster, contained sufficient procedural, i.e. the second appeals test, and substantive safeguards, namely the higher courts’ deference to the specialist Tribunal, to ensure that it could perform its important role effectively without it being abused by claimants or resulting in an excessive use of the courts’ resources. In light of Ali, perhaps it would be sensible for a new government to revisit the partial ouster of the Cart jurisdiction.
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