Legal Update: In a Nutshell - Family reunification for child refugees
Tuesday, June 7, 2016
Stewart MacLachlan considers recent case law that may allow some refugee children to apply to be reunited with their parents or siblings.
The UK government has provisions in its Immigration Rules that allow those who are recognised as refugees or are granted humanitarian protection to be reunited with their children and partners. However, there are no rules within UK legislation or the Immigration Rules for a child who is a refugee, or has humanitarian protection, in the UK to be reunited with his parents or siblings, or indeed any other family member.
However, the recent case of AT & another (Eritrea) 2016 UKUT 00227 may have a positive impact for a number of children in this situation to apply to be reunited with their family members. In this case the family unit consisted of a mother and her two sons. The older of the siblings is now 19 years old but had arrived in the UK as an unaccompanied minor when aged 16. He was granted refugee status in the UK. However, his mother and younger brother remained living in Sudan.
The refugee’s mother and younger sibling had fled Eritrea separately from the older sibling and had been living in a refugee camp in Sudan. They had been assisted by the UNHCR to contact the older sibling and, subsequently, to travel to Khartoum to apply for entry clearance to the UK. They were refused on the basis there was no provision in the immigration rules to allow them to join the older sibling in the UK. This refusal occurred when the older sibling was still a child.
They appealed the refusal on the basis of Article 8 of the European Convention on Human Rights – the right to family and private life – and the case recently came in front of the President of the Upper Tribunal. The tribunal held that the refusal by the Home Office to allow family reunification was in this case disproportionate.
The reasons for this included the fact that there was a strong family unit; the ongoing separation was having a detrimental effect on the older sibling and other family members; and the best interests of the older sibling. The Upper Tribunal also found that there was no evidence submitted to support the argument that children would be at risk of being trafficked or exploited to reach the UK so that family members can later join them. This argument is often highlighted when arguing against this type of reunification.
It is important to note that there is no duty on the UK to facilitate family reunification in all circumstances involving child refugees. However, this case recognises that refusing such cases can breach the right to family life of a child refugee and that this breach may be disproportionate. If a child refugee is in contact with parents or siblings who are not in the UK, it would be worth that child obtaining legal advice to explore the prospect of making such an application to be reunited.
Stewart MacLachlan is legal and policy officer at Coram Children’s Legal Centre