Entry Clearance Officer v BB & Ors

Factual and Procedural Background

The appeal concerned refusal of entry clearance to Afghan family members who sought to join their Sponsor in the United Kingdom under Appendix Family Reunion (Sponsor with Protection), on the basis that Article 8 was not engaged because no relevant family life existed. The FTT dismissed the appeals, the UT set that decision aside in an error of law decision, and the UT then allowed the appeals on human rights grounds after remaking the case. The ECO appealed to the Court of Appeal with permission. [Para 28][Para 38][Para 39][Para 42][Para 43][Para 25]

The family relationship in issue was between the Sponsor and his parents, three sisters, and two younger children of one sister; the Sponsor’s father died while the appeal was pending. The Sponsor fled Afghanistan in late 2015 or early 2016, later obtained refugee status and then indefinite leave to remain, and he has serious mental health conditions including PTSD, severe depressive disorder, and generalised anxiety disorder. He had visited the family in Turkey twice and maintained regular contact with them from 2019 onwards. [Para 29][Para 30][Para 32][Para 33][Para 34][Para 35][Para 37]

Legal Issues Presented

1. Whether the UT was entitled to set aside the FTT’s finding that Article 8 was not engaged because family life had not been established between the Sponsor and the Respondents. [Para 42][Para 43][Para 124][Para 125]
2. What the correct test is for “family life” between adult relatives, particularly in light of the Court of Appeal’s later decision in IA. [Para 116][Para 118][Para 119][Para 120]
3. If Article 8 was engaged, whether the refusal of entry clearance was a disproportionate interference, although that issue would only arise if Ground 1 failed. [Para 126][Para 142][Para 225]

Arguments of the Parties

Appellant's Arguments

• The UT was not entitled to interfere with the FTT’s carefully reasoned conclusion that Article 8 was not engaged. [Para 128][Para 130][Para 131][Para 132][Para 133]
• The UT over-read the FTT’s reasons and wrongly treated the FTT as having demanded “exceptionality” or an unduly high threshold. [Para 129][Para 147][Para 148]
• The UT applied the wrong legal test for adult family life, because the correct test is dependency, not simply “real, effective and committed support.” [Para 134][Para 135][Para 136][Para 138][Para 140]
• The proportionality analysis was also said to be flawed, but that point became unnecessary if Ground 1 succeeded. [Para 141][Para 142]

Respondents' Arguments

• The UT was right to conclude that the FTT had misdirected itself by looking for an exceptional level of attachment and by comparing the family to others reunited in similar circumstances. [Para 145][Para 146][Para 148]
• The evidence of medical and social support showed more than ordinary emotional ties and was said to justify the finding that Article 8 was engaged. [Para 149][Para 151][Para 160]
• In the alternative, the Respondents said the UT’s decisions should be upheld because the correct test was effectively applied, or because any error was immaterial. [Para 153][Para 154][Para 155]
• They also argued that the FTT should itself have been found to have erred, and that the UT should expressly have found “additional elements of dependence.” [Para 155][Para 156][Para 157][Para 158][Para 159]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from the principle that the UT could only intervene if the FTT had made an error of law, and it stressed that appellate restraint is especially important where the FTT has made a specialist factual evaluation on oral and expert evidence. [Para 182][Para 183][Para 184][Para 185][Para 187][Para 192][Para 193]

The Court disagreed with the UT’s view that the FTT had searched for “exceptionality” or applied an unduly strict notion of what counts as “normal” family life, holding instead that the FTT had actually asked the correct factual question and had reasoned through the evidence in detail. [Para 194][Para 195][Para 196][Para 198][Para 201][Para 203][Para 205][Para 207][Para 211][Para 214][Para 217]

The Court treated the FTT’s findings on the loss of contact after the Sponsor left Afghanistan, the absence of financial dependency, the nature of the later contact, and the limited significance of the family’s joy at reunion as permissible evaluative conclusions on the evidence. [Para 200][Para 201][Para 202][Para 203][Para 204][Para 205][Para 207][Para 209][Para 211][Para 213][Para 214][Para 215][Para 216]

The Court also held that the FTT’s reliance on the older Kugathas line of authority did not make its decision unlawful, because the FTT had in any event applied a test that was more generous to the Respondents than the correct dependency-based test later clarified in IA. [Para 218][Para 219][Para 220][Para 223]

For that reason, the Court concluded that the UT should not have set aside the FTT’s decision, and once Ground 1 succeeded there was no need to consider the UT’s remade decision or the proportionality challenge. [Para 221][Para 222][Para 223][Para 224]

Holding and Implications

Appeal allowed. The Court allowed the ECO’s appeal against the UT’s error of law decision and reinstated the FTT’s dismissal of the Respondents’ appeals. It held that the UT should never have embarked on remaking the case, so Grounds 2 and 3 did not arise. The direct consequence was that the refusal decisions stood, and no separate new precedent was set beyond the application of existing authority on appellate restraint and adult family life. [Para 225][Para 226][Para 228]