12 November 2020
This article was authored by Liz Barratt of Bindmans LLP.
In 2017 the Bindmans immigration team were approached to act for EK in her visit visa appeal which had recently been heard by the Court of Appeal. She is a single adult woman and national of Sierra Leone and she applied to visit her cousin and his family. She was successful before the First-tier Tribunal who accepted she met all the requirements of the visit rules and allowed her appeal on “human rights grounds”. That decision was appealed to the Upper Tribunal (UT) by the Home Office. The UT held that the FTJ had erred in law by not setting down his findings of fact in relation to Article 8 but held that family life existed between EK and her UK family members and that the refusal of a visit visa engaged Article 8 and in the circumstances of this case the maintenance of family life: visits were an important consideration especially for the young children of the family.
The Secretary of State sought and was granted permission to appeal to the Court of Appeal. EK’s case was heard after the Court of Appeal’s decision in Secretary of State v Abbas [2017[ EWCA Civ 1393 [2018] 1 WLR 533. The Court allowed the Secretary of State’s appeal finding that Article 8 was not engaged in this case as the evidence did not establish that “family life” existed between EK and her UK family. The Court looked at the family relationship, noted that EK was visiting her cousin and family, and also saw the shortness of the proposed visit as being relevant to the Article 8 assessment.
Following on from EK’s case the Court of Appeal heard a third visit appeal case, Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757. This case involved a proposed family visit between two adult brothers. The Court of Appeal held that this visit did not engage Article 8.
We sought permission to appeal to the Supreme Court. To cut a long story short, in December 2019, the Supreme Court dismissed our application for permission to appeal.
It was our view that the findings of the Court of Appeal (that Article 8 was not engaged in such family visits) were wrong, resulted in discrimination, and that the case was of great importance as it effectively meant most family visitors would have no right of appeal to the First-tier Tribunal.
We decided to apply to the European Court of Human Rights.
As part of our preparation and thinking around the case, we wanted to gather supporting evidence to show the level of refusals in family visit appeals. At its heart we were trying to put together a discrimination argument backed up by the statistics to show that the nationality of the applicants and family members led to an overwhelming level of refusals from certain parts of the world. Our own casework experience told us anecdotally that this was the situation.
We approached the SLF through ILPA for funding for research around these issues. The SLF panel asked us some searching questions.
We were very pleased to be granted funding to carry out some of that research. This was work that we thought was essential to the proper preparation of the case and was work that we would not have been able to undertake otherwise, given that we and Counsel had worked on the case pro bono since 2017.
Once the funding was agreed we made a call for evidence from practitioners and we received a number of extremely helpful responses. Those responses then led to us having further discussions with various practitioners and taking witness statements.
At the same time we also made a number of freedom of information requests (FoIs), both to the Home Office and to the Tribunals. Through those FoIs we were able to see an apparent change in policy by the Home Office in that they had, at an early point in the case, been able to provide us with information about the number of family visit appeals that had been made and refused. Later in the case this changed to a policy where they simply did not record those sorts of details. As such, it brings sharply into question their assertion that the removal of the family visit appeal system did not contravene their duties under the Equality Act. Certainly none of the evidence we have seen as a result of our research has suggested otherwise.
We have now submitted our application against the UK to the European Court of Human Rights and we await the court’s response.
We very much hope that the work that we have done with the help of the SLF will bring about a policy change. Having spent much time going back over the history of the parliamentary debates and the intentions of Parliament and indeed Home Office guidance, it seems to us clear that whilst family visit appeal rights were removed, it was never envisaged or intended that the residual human rights appeal to the Tribunal would not be available to family members.
From our work and from the discussions we have had with many other practitioners across the country, it is firmly our view that the current family visit system operates to discriminate against certain settled communities in the UK and those families who have family members permanently living abroad.
Bindmans immigration team have worked on the case with Sonali Naik QC, Rebecca Chapman and Colin Yeo, all of Garden Court.