Posted on July 10th 2018
He was young and distressed. He had just turned 18 but was still very much a child. A blog by Nicola Burgess our Legal Director
Four years ago I started acting for M. He was young and distressed. He had just turned 18 but was still very much a child. He was preoccupied with the thought of his mum and younger brother coming to harm in the refugee camp where they were staying in Sudan. For political reasons they had all been forced to flee their home country of Eritrea.
At each appointment M would tell me the horror stories he had heard about the camp; where people were routinely rounded up and forced to return to Eritrea where their lives would be in danger, where women were raped and where the vulnerable were targeted and their organs harvested.
M was the de facto head of his household after his father had been persecuted by the state and detained. He carried the worry for his family on his shoulders. It impacted on every part of his life. He began to struggle at school and he had stopped going out and socialising with friends. He was developing in to a depressed recluse, not the outgoing bright and articulate young adult he should have been.
In 2016, 3 years after he made an application for his family to join him in the United Kingdom, following the ruling by the Upper Tribunal in AT, his mother and brother were permitted to join their son/elder brother. M was overcome with joy, but mainly relief.
Two years later, M and his dependants AT and AHI have all now been granted Indefinite Leave to Remain in the United Kingdom. M is now that confident outgoing young man he always promised to be. He has been able to go back and finish his studies, without the worry of what is happening to his loved ones thousands of miles away.
M is one of the lucky ones. There is still no provision in the immigration rules (or elsewhere) to allow a child refugee to have their parents or family join them in the UK. In AT the Tribunal found that a decision to refuse entry clearance in these circumstances can breach Article 8 ECHR. However, this can be a complex legal argument to make. Children like M find it difficult to access legal advice about their rights and entitlements to sponsor family members to join them. Legal Aid is not automatically available for such applications. Given the delays in the process, many are against the clock, to make the application before they turn 18. When an application is made entry clearance decisions routinely fail to properly consider the best interests of a child and fail to apply the relevant law so children are then left to navigate the complex and lengthy appeals process.
The Family Reunion Bill proposes that children should be allowed to bring their parents and siblings under 18, to the United Kingdom and that legal aid should be available for these types of applications (and for all refugee family reunion applications). This would put the United Kingdom on the same legal footing as the rest of Europe (other than Denmark). This is a private member’s bill, put forward by the SNP MP Angus MacNeil. On the 16th March 2018 the House of Commons voted in favour of the Bill. However, there is still some way for the Bill to go before it receives Royal Assent. In particular, it faces considerable opposition from the government, who have briefed against the “pull factor” – meaning that in their view children will be sent ahead to secure an anchor in the United Kingdom so other family members can follow. Caroline Noakes, Immigration Minister suggested that this provision would even put people’s lives at risk as they would be more inclined to attempt dangerous journeys from conflict zones.
Having worked with MI and his family for the last 4 years, and having worked with numerous other refugees, this is not the case. They have been recognised as refugees as they have had to leave their home, it is a matter of necessity, not of choice. There is no pull factor, it is a push factor – they are forced to flee their own countries because of the conflict or danger they find themselves in.
Indeed, in allowing the appeal in AT, Mr. Justice McCloskey, the then President of the Upper Tribunal commented:
Furthermore, if family reunification cannot be achieved in the United Kingdom, M will be driven to consider alternatives, some of them manifestly dangerous given his youth and unaccompanied and unsupported status. These include the precarious journey involved in attempting to reunite with the Appellants wherever they may be at present. The evidence points to the probability that they are either in Khartoum or the UNHCR refugee camp several hundred kilometres away. The situations in both locations are fraught with danger and imbued with deprivation. Reunification of this family in their country of origin, Eritrea, is not a feasible possibility, having regard to the factual framework rehearsed in  -  above. 
I consider it distinctly possible that if family reunification cannot be secured in the United Kingdom, the sponsor will depart these shores in the dangerous pursuit of one of the alternatives mooted above. This would deprive him of the protections which he has obtained as a result of being recognised a refugee. This would be manifestly undesirable for him, contrary to the public interest and incompatible with the philosophy and rationale of the Refugee Convention. It would also expose him to a risk of violating his Convention rights, in particular those protected by Articles 3 and 4. In the real world, recognition of this possibility is far from fanciful. I consider this to be a potent factor in the balancing exercise. Resort to this Tribunal is very much a measure of last resort for him. 
We call on the government to ensure that this important Bill becomes law, so that children like M can obtain security and stability and achieve their potential without experiencing fear of what might be happening to their loved ones.