Family Unity and the Refugee Convention
In BM and AL (352D(iv); meaning of “family unit”) Colombia [2007] UKAIT 00055AIT, a Tribunal chaired by Mr Justice Hodge, President of the Asylum and Immigration Tribunal (AIT), considered the definition of ‘family’ in cases where recognised refugees seek to sponsor applications for entry clearance by family members so that the family members can join the refugee in the UK. The UK Immigration Rules set out the requirements for such family reunion. The appeals of BM and AL failed.
BM and AL were minor children, living with their respective mothers in Colombia. On the facts, they had never formed part of a family unit including their father as they had always lived with the families of their respective mothers. There was no dispute about the relationship between the father and his children. When their case was first heard by an immigration judge, that judge chose to describe the children as the product of ‘extra-marital affairs’. It was not disputed that there were bonds of affection between the children and their father. It was also accepted that he provided financial support to them. However, the appeals failed on the basis that the children were not ‘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’, as required by the relevant immigration rule.
The AIT's approach to deciding what constitutes family membership for the purpose of interpreting the rule is important. Whether an applicant is able to show that they were a member of the sponsoring refugee’s ‘family unit’ is in each case a question of fact, and a matter that was to be interpreted purposively, in line with provisions on family unity in the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention). Thus, an application is not automatically defeated by the family member’s not actually having lived as part of the same family unit as the sponsor at the time when the sponsor fled and sought asylum. This point is underlined in the summary at the beginning of the case produced by the AIT. This says that under the rule the meaning of a family unit:
"...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 AIT explicitly accepted that the purpose of the Immigration Rule dealing with applications for entry clearance by family members of recognised refugees was to implement recommendations concerning measures to protect the family life of refugee, made when the 1951 Refugee Convention was being drafted and reproduced in by the United Nations High Commissioner for Refugees (UNHCR) in their Handbook. As such, there was a need for flexibility, to apply the provisions of the rules purposively, to protect a refugee’s family life:
‘We accept that if the phrase “family unit’’ were to be limited to children who were living in the same household as an asylum seeker prior to his leaving his country of habitual residence then the Rules could have said so. We acknowledge that the concept of a family is very wide and depends crucially on the context in which the word is used. Ascendant or descendant relatives, uncles, aunts and cousins are always likely to be regarded as members of the same family. Whether they form part of a family unit will depend very much on the facts. A so-called nuclear family is highly likely to be a family unit. The child of divorced parents who spends the bulk of his time with his mother and otherwise has regular contact with his father is certain to be part of the mother's family unit. Whether at the same time he can be regarded as part of the father's family unit will depend very much on the particular facts of the case.’
In line with these general principles:
‘…in many cases it will be clear that a child was part of a family unit with an asylum seeker in his country of habitual residence. The child will have lived with the asylum seeker and perhaps another partner. Alternatively if there has been separation the reason for that separation may well be associated with the claim of persecution and a child might still remain part of the family unit from which the potential refugee had been temporarily separated…’
‘If on the other hand the separation is the result of social choice by the parties and a separate family unit based upon the mother is created, it will be correspondingly harder to establish that a child is in reality a part of two different family units. This will be especially so if the child is young and the consequence will be separation from the mother rather than family unity as envisaged by the UNHCR handbook.’
