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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> BM and AL (352D(iv); meaning of “family unit”) Colombia [2007] UKAIT 00055 (13 June 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00055.html Cite as: [2007] UKAIT 55, [2007] UKAIT 00055 |
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BM and AL (352D(iv); meaning of "family unit") Colombia
[2007] UKAIT 00055
Date of hearing: 22 May 2007
Date Determination notified: 13 June 2006
BM (FIRST APPELLANT) AL (SECOND APPELLANT) |
APPELLANT |
and |
|
ENTRY CLEARANCE OFFICER, BOGATA | RESPONDENT |
For the Appellants: Mrs M Hodgson (Counsel instructed by Beemans Solicitors)
For the Respondent: Mr S Ouseley, Home Office Presenting Officer
What is a 'family unit' for the purposes of para 352D(iv) Immigration Rules is a question of fact. It is not limited to children who lived in the same household as the refugee. But if the child belonged to another family unit in the country of the refugee's habitual residence it will be hard to establish that the child was then part of two different 'family units' and should properly be separated from the 'family unit' that remains in the country of origin.
The Two Appellants
The Sponsor Father
Immigration Rules
"If the principal applicant is granted asylum and leave to enter or remain any spouse, civil partner, unmarried or same sex partner, or minor child will be granted leave to enter or remain for the same duration".
This is no doubt the basis on which Maria Naomi and the sponsor father's child Jans and their daughter have been granted status here.
"352D The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who has been granted asylum in the United Kingdom are that the applicant
(i) is the child of a parent who has been granted asylum in the United Kingdom and
(ii) is under the age of 18, and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum …………"
The 2005 Appeal
"In so far as rule 352D, is concerned there is absolutely no evidence before me that the appellants formed part of the sponsor's family prior to his going to the United Kingdom. Indeed the contrary seems to be the case. At all times they have lived with their mothers and all paternal grandparents. The sponsor was married to another woman, and by whom he had children, and it appears it was that person and those children whom he initially brought to the United Kingdom by way of family reunion. I find therefore that the appellants do not meet the requirements of paragraph 352D (iv)."
The 2006 Tribunal's Decision
"13. I find that each of these appellants is a national ofColombia
and that they were born in
Colombia
to different mothers. I also find that the sponsor is a Columbian national who came to the United Kingdom in later 1999 and applied for asylum which he was granted. Furthermore, I find that the sponsor formed a close association with a woman by the name of Maria Naomi, with whom he has lived on a permanent basis in the same household since 1989 or 1990. They have had one son of their relationship who was born nine years ago called Jans. The sponsor, Maria Naomi and Jans lived together in the same family unit in
Colombia
. When the sponsor fled
Colombia
and came to the United Kingdom, Maria Naomi and Jans eventually joined him in the United Kingdom some ten months after his arrival here. Maria Naomi and the sponsor married some five years ago and have had a daughter of their relationship called Nadine who also lives with them. On the evidence before me, which includes the interview of the appellants' respective mothers, I find that the appellants and their sponsor father have never lived together as one family unit. The appellants are the children of two women with whom the sponsor has had what can best be described as extra marital affairs. I find that the appellants and the sponsor have never lived together as one family unit either with their mothers or with the sponsor's present wife. On the clear evidence before me, at the time of his departure from
Colombia
the sponsor had created a family unit with Maria Naomi and their son Jans. There is evidence that there has been a close relationship between the sponsor and the two appellants. To his credit the sponsor has clearly always cared for his two sons, who still live in separate family units with their mothers and other relatives in
Colombia
, and he has no doubt a strong affective relationship with them. Looking at paragraph 352D of Rule HC 395, I note that subparagraph (iv) of that paragraph requires each of these appellants to show that they were part of the 'family unit' of the person granted asylum at the time that the person granted asylum left the country of his habitual residence in order to seek asylum in the United Kingdom. I cannot give to the words "family unit" any other interpretation except its very natural interpretation of one unit as a family. The appellants have each lived with their mothers and other relatives in completely separate family units to their sponsor father's family unit with his wife and 'legitimate' children. At the time of his departure from
Colombia
, I find, on the evidence before me, on a balance of probabilities that the appellants did not live with their sponsor father as part of his "family unit"."
Given those findings the Immigration Judge dismissed the appeal.
The Parties' Submissions
"In particular it is submitted that a family unit should be defined by the nature of the relationship. It is submitted that to exclude automatically any family members (minors) who are not living with both parents altogether as a unit would exclude any children of a refugee who is divorced, separated or unmarried to the mother of the child and did not, for very valid reasons, live with the children, and that this approach ignores the now common situation of the "fragmented" family."
"185 As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. In practice, other dependants, such as aged parents or refugees are normally considered if they are living in the same household…. The principle of family unity operates in favour of dependants not against them."
The two appellants are the minor children of the sponsor father. A strict application of the guidance given by the UNHCR ought to mean that they should be admitted to the UK as children of a recognised refugee.
Discussion
"Recommends governments to take the necessary measures for the protection of the refugee's family especially with a view to …..
(i) ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country …………"
It is clear in our judgement that various paragraphs in Part 11 of the Immigration Rules under the general heading "Asylum" are designed to implement that recommendation. Paragraph 349 as quoted above allows the inclusion in a refugee's claim for asylum of minor children accompanying him together with accompanying spouses or civil partners etc. Under the heading "Unaccompanied Children" provision is made for children seeking asylum in their own right but paragraph 352D sets out the requirements to be met by a minor child seeking to join a person who has already been granted asylum in the UK. The policy of these provisions is indeed to promote family reunion. But the question remains what is a "family unit".
MR JUSTICE HODGE
PRESIDENT
Date: 5 June 2007