Gaza ‘family’ claim fails

The right to family life applies only to core members, not adult siblings

An immigration appeal tribunal was wrong to find that a family in Gaza were entitled under the human rights convention to join a relative in Britain, the Court of Appeal decided yesterday.

The case became notorious in February when the opposition leader Kemi Badenoch drew attention at prime minister’s questions to the fact that the un-named family had applied for entry using a form designed for the Ukrainian resettlement scheme.

Allowing an appeal by the home secretary Shabana Mahmood, three senior judges headed by the master of the rolls Sir Geoffrey Vos held that there was no family life uniting the family of six, who were living in Gaza, with the father’s brother, who came to the UK in 2007 and now has British citizenship.

Yesterday’s ruling will not affect the four children and their parents, who were granted entry clearance by the former home secretary Yvette Cooper. But in future the courts will have to interpret “family life” more narrowly.

Vos and his fellow appeal judges said the human rights court had consistently held that the law does not protect family life between parents and adult children, or adult siblings, unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties”.

I reported in July that the case had exposed a difference of opinion between Cooper and the then foreign secretary David Lammy. But there was no truth in the widely believed suggestion that the family were trying to pass themselves off as Ukrainians. As the court said yesterday, “they used the Ukraine family scheme form because the home secretary’s guidance — entitled Leave outside the Rules — tells applicants to use the application form “for the route which most closely matches [your] circumstances”.

The upper tribunal immigration and asylum chamber

In January, two judges of the upper tribunal overturned a ruling by the first-tier tribunal and concluded that the family had demonstrated “a very strong claim indeed”. Put another way, said the tribunal at the time, “there are very compelling or exceptional circumstances”.

In the upper tribunal’s view, that justified the family’s claim under article 8(1) of the human rights convention, which says “everyone has the right to respect for his private and family life, his home and his correspondence”.

But the Court of Appeal said yesterday:

The brother naturally wants to leave Gaza to live with the [UK-based] sponsor to avoid the dangers that he and his family face there, but that does not, in itself, mean that there exist such elements of dependency as are envisaged by the autonomous meaning of family life in article 8(1).

The father and his family can continue to live in Gaza. They managed to live in Gaza without any long-term support from the sponsor for 17 years before the war. They do not totally depend on him now. He sends money as and when he can. There is a level of emotional support provided by the sponsor to the brother and his family in their calls…

In our judgment, however, none of this amounts to the level of dependence needed to establish family life between adult siblings under article 8(1). The family life envisaged by article 8(1) is primarily that of the core family, normally cohabiting together. The brother and the sponsor have not cohabited for years. They would like to do so, but that is a different thing…

In our judgment, no sufficient family life exists between either the sponsor and the brother or between the sponsor and the family.

The appeal judges added that even if they had found that family life existed between the brother and the family, they would have decided that there were no very exceptional or compelling circumstances justifying the grant of entry clearance to the family outside the home secretary’s rules.

Article 8(2) says “there shall be no interference by a public authority with the exercise of [the right to family life] except such as is in accordance with the law and is necessary in a democratic society in the interests of…the economic well-being of the country…”

“It is the responsibility of the home secretary and the government to make policy decisions as to what is necessary to protect the economic well-being of the UK,” the appeal judges observed. “Courts and tribunals must respect those policy decisions and not seek to get around them, save in very exceptional or compelling circumstances.”