Factual and procedural background

The linked appeals concern an elderly father, mother and their adult daughter, who are all nationals of Afghanistan. Following the takeover of Afghanistan, the appellants fled the country to Pakistan on visit visas, which would then expire and their renewal would subsequently be refused. The appellants applied for entry clearance to join their sponsor, a British citizen in the UK, under the adult dependent relative rules.

The Entry Clearance Officer (ECO) refused their applications for entry clearance. The ECO considered that paragraphs E-ECDR 2.5 and GEN 3.1. and 3.2 were not met and that there were no compassionate circumstances such to warrant a grant of entry clearance outside the Immigration Rules.

The appellants’ linked appeals against the ECO’s decisions on the ground that maintenance of the refusals would amount to a disproportionate interference with the appellants’ Article 8 rights were dismissed by the First-tier Tribunal. Permission to appeal against the First-tier Tribunal decision was granted by the Upper Tribunal. The issues considered by a panel of the Upper Tribunal (Judges Bruce and O’Callaghan) were: first, whether Article 8 was engaged (§9); and second, whether the First-tier Tribunal erred in restricting its analysis to the appellants’ circumstances in Pakistan, a country where they had no lawful immigration status (§8). An indication was given that the decision was likely to be reported but to date has not been.

Article 8 Family Life

The Upper Tribunal agreed with both arguments advanced on behalf of the appellants in relation to Article 8. First, the Upper Tribunal found at §14 that it was implicit in the refusal decisions that Article 8(1) was engaged, as these provided for a right to an appeal on human rights grounds: SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 43 (IAC) at [72]-[74]. Second, the Upper Tribunal held at §15 that the First-tier Tribunal’s finding on Article 8(1) was irrational. Despite fleeing Afghanistan due to his association with the Western alliance which ousted the first Taliban regime, the sponsor had stayed in regular contact with the appellants and had been supporting them financially for over 20 years. This amounted to a level of real, effective and committed support in the Kugathas [2003] EWCA Civ 31 sense.

The interpretation of “living in”

The first appellant submitted that the refusal was disproportionate as he met all the requirements of paragraph E-ECDR 2.5, which provides that (emphasis added):

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Additionally, all the appellants, but in particular the second and third, relied on exceptional circumstances under GEN 3.2.

In the eyes of the Upper Tribunal, it was clear that if the appeals had been considered on the basis that the family were still “living in” Afghanistan as opposed to Pakistan, the appeals would have been allowed (§19).

In the majority of cases where applicants apply from their own country the meaning of “living in” will not be in dispute. In the Upper Tribunal’s view (in line with the appellant’s submissions), this is why the term “home country” is used in the Home Office guidance and in BRITCITS v SSHD [2017] EWCA Civ 368 by the Court of Appeal (§30). It is in the context of applicants who may not be able to pursue such applications from their home country that the meaning of “living in” requires interpretation. The Upper Tribunal observed at §29 that: “For a phrase too obvious to define, ‘living in’ has proved difficult to interpret”. In the decision, the Upper Tribunal discussed how the length of residence (§31), the settled intention of an individual to stay in a particular place (§32) and legal status (§33) may be relevant considerations, although they are not determinative.

The Upper Tribunal held at §34 that “living in” is not the same as “ordinary resident” and should be understood as the “regular order of a man’s life”, citing Lord Sumner’s wording in C.I.R. v. Lysaght [1928] A.C. It requires a rounded analysis, as the “phrase is concerned with whether someone has put, or intends to put, roots down in a place, and created the practical and social foundations to enable a normal life to exist” (§35). The Upper Tribunal cited Lord Scarman’s suggestion of the reasons underpinning the choice of regular abode in R v Barnet LBC ex parte Shah [1983] 1 All ER 226 and noted that “education, business or profession, employment, health, family, or merely love of the place” might all be relevant considerations.

Applying the above principles to the circumstances of the case, the Upper Tribunal concluded that the first appellant was not living in Pakistan at the date of decision (despite the fact that he had been there for 8 months at that point) and equally even though over a further year had passed he was not living in Pakistan at the date of hearing. The Upper Tribunal also considered that it could not be said for the purposes of the rule that he was still living in Afghanistan. The Upper Tribunal concluded that he was not “living anywhere” and that, effectively, he was in limbo.

However, the Upper Tribunal considered that paragraph GEN 3.2. was met on the basis that this was a family who had suffered “the threat of persecution, forced migration and separation from each other” due to the involvement of two members, including the sponsor, with the Western alliance. The first appellant is elderly and ill; and the second and third appellants are under “severe mental distress” for fear of being returned from Pakistan to Afghanistan and to “permit that to continue indefinitely would be harsh” and “unjustifiably so” (§39).

It followed that the First-tier Tribunal had erred in considering Pakistan as the country where the appellants were living in, which infected the Tribunal’s application of the rule and the proportionality balancing exercise (§36). Consequently, the Upper Tribunal set aside the decision of the First-tier Tribunal and remade the decision, allowing the appeals on human rights grounds (§§37-41).

It is understood at the time of writing that the Secretary of State for the Home Department is seeking permission to appeal the case to the Court of Appeal.

Danny Bazini, leading Susana Ferrín, acted for the three appellants in the linked appeals against the Entry Clearance Officer’s decisions before the Upper Tribunal, and were instructed by Palwasha Heidar of AA Immigration Lawyers Ltd. The determination can be found here.