(Court of Appeal; Waller, Sedley and Moore-Bick LJJ; 29 February 2008)
The cousin sponsoring the children's application for entry clearance was a refugee from Somalia who had obtained permission to remain in the UK. The children were Somalian war orphans living in Ethiopia for whom the cousin had accepted financial responsibility. At the time of the application the children were being cared for by the cousin's mother-in-law, but they were then passed to a friend, and by the date of the appeal it was clear that the children were receiving inadequate care in Ethiopia. The immigration judge did not take this change into account; applying the exceptionality test, he rejected the appeal.
When hearing an appeal against refusal of an application for family reunion, the tribunal was only entitled to consider the circumstances at the time of the decision to refuse; it could not take into account any change of circumstances. However, the case was to be remitted for reconsideration applying the test of proportionality, rather than exceptionality. The children were entitled to reapply for entry clearance on basis of their new circumstances.