No error in refusing entry to man with British family: Inner House
A Sudanese man who was refused leave to enter the UK to join his wife and children, who were British citizens but dependent on state benefits, had failed to show error on the part of the First-tier Tribunal in refusing his appeal against that decision, or the Upper Tribunal in refusing leave to appeal, the Court of Session has held.
Lord Drummond Young, Lady Clark of Calton and Lord Pentland in the Inner House upheld a decision of the Lord Ordinary refusing permission for judicial review proceedings brought by Sami Ahmed, on the basis that there were no real prospects of success.
Mr Ahmed had met his wife at university in Sudan in 2003; they married in 2005 and had three children now aged 11, seven and four. His wife and children were all British citizens (his wife held dual nationality) and currently lived in the UK; his wife received benefits. They had made four visits to Sudan, paid for by her uncle, and otherwise kept in contact by Skype or phone. The children were in full time education here or were due to start it. Mr Ahmed, who at present depended on casual work, accepted that he could not meet the financial requirements in the Immigration Rules, but argued in seeking permission for judicial review that it was unreasonable to expect a British parent and children to relocate to another country.
The tribunal judge noted that the two elder children had been born in Sudan; that the mother required an interpreter in court and Arabic was probably the language spoken at home; and considered that there was nothing to stop the family rejoining Mr Ahmed in Sudan. They had the choice to do so or to continue in their present circumstances. She also had regard to the maintenance of immigration control in the public interest. There were no exceptional circumstances or compassionate and compelling factors.
Before the Inner House it was argued that because Mr Ahmed's wife and children were British, it would be unreasonable to expect them to move to Sudan to be with him. The proportionality of interference with family life should not be assessed simply on the basis that the whole family should live together in Sudan. Interference with family life would therefore involve separation over a prolonged period, and the proportionality assessment should proceed on that basis, as should the objective of the maintenance of immigration control. The tribunals had erred in assuming that the family could be reunited in Sudan, in view of the British and EU citizenship of the wife and children.
Lord Drummond Young, delivering the opinion of the court, said Mr Ahmed had first to show a realistic prospect of establishing an error of law by the Upper Tribunal. However there had been no error in the First-tier Tribunal's assessment of proportionality: there was no requirement to proceed on the basis that the wife and children would remain in the UK, and no obligation to respect a married couple's choice of country in which to reside. The Immigration Rules were important as a factor in evaluating proportionality, and an important policy within the rules was the financial independence of persons seeking to enter the UK. The fact that the wife and children did not wish to leave this country was only one of a number of factors that required to be balanced.
"We would... emphasise that the fact that the petitioner’s wife and children are British citizens does not give the family the right to insist that it should be reunited in the United Kingdom; it does no more than give the wife and children the right to reside there", he stated. "For the foregoing reasons we are of opinion that the reasoning of the First-tier Tribunal in conducting the proportionality exercise under article 8 [of the European Convention on Human Rights] is correct and discloses no error of law. Consequently the decision of the Upper Tribunal to refuse permission to appeal on this ground cannot be faulted."
He concluded: "The critical question for present purposes is whether the petitioner’s argument that the tribunals and Lord Ordinary erred in law has any realistic prospect of success. In our opinion it has no such prospect. As the judge of the Upper Tribunal remarked in his opinion, this was 'an unexceptional spouse appeal where the financial requirements of the rules were not met'. Furthermore, no compelling or unusual factors were present, and the judge of the First-tier Tribunal had correctly considered the question of proportionality in relation both to the children and to the petitioner and his wife. The case is therefore very clear."
Nor was the second appeals test met, as laid down in cases such as Eba (2012).