The Court of Appeal (CoA) had to balance Article 8 of the European Convention on Human Rights (ECHR) with immigration control in a family reunification case in which the children had been smuggled in small boats to the UK.
Background:
The claimants are a mother and father, EK and SK, and their two young sons, MIK and MAK, are aged nine and six. They are Turkish nationals of Kurdish ethnicity. It is their case that the father faces persecution in Turkey on account of his political activities. They travelled to Europe at some time earlier this year to seek asylum.
After spending a little time in the "jungle" outside Calais, on the 19th of July 2024, they boarded a small boat provided by people-smuggling "agents" to cross the Channel and enter the UK illegally. As a result of a violent incident, the parents became separated from the children and were left behind when the boat departed. It is not suggested that the separation was in any way deliberate.
On their arrival in the UK without their parents, the children were put into the care of Kent County Council (KCC) and placed with foster parents. Contact was re-established with the parents on the 25th of July. On the 21st of August, the parents sought entry clearance for family reunification in the UK, citing urgent compassionate circumstances and fearing persecution in Turkey due to their political activities. However, as nothing happened on the 30th of September, the parents began an application for judicial review of the Home Office’s failure to act. On the 11th of October, the Home Office issued its summary grounds of defence as the next stage in proceedings. An urgent hearing was held on the 31st of October 2024 and an interim order was granted.
On the 13th of November, the Home Office appealed against the order. An urgent hearing was subsequently held on the 14th of November. The stay was refused and the Home Office was ordered to arrange for the parents’ admission to the UK by the 15th of November 2024. The Home Office appealed.
Decision:
The CoA sided with the Home Office, overturning the interim relief order. The Court found that the reasoning of the Lower Court was flawed. The first flaw was the fact that the Judge dismissed the possibility for the Home Office to return the children to France and, despite recognising that there is no extant established process, the French authorities could have agreed to a voluntary return. Interestingly, this point was procedural, with the CoA noting that the Lower Court should have adjourned to ask for more evidence.
The other error was that the Judge dismissed as speculative and lacking in logic, the Home Office's concern about incentivising parents to put their children in small boats alone.
Implications:
This judgement highlights the importance for the courts to strike a balance between safeguarding human rights and the protection of public policy imperatives. Although the trauma for the children was considered paramount, their plight must be weighed against the potential exploitation of a breach in the immigration system.
The Court was convinced that the Home Office had legitimate reasons for withholding the granting of entry clearance. It also highlights the need for authorities to cooperate and that the lack of such cooperation could put children in a difficult situation.
