A Palestinian family's entry into the UK has caused an outsized ripple effect through the UK's media and political parties. At the last Prime Minister's Questions Sir Keir Starmer (sort of) agreed with Kemi Badenoch in saying that an Upper Tribunal decision granting entry to a Palestinian family was “wrong” and based on “legal loophole”.
Much has been written about the importance of the Prime Minister failing to uphold the independence of the UK's courts, but most articles fail to explain why almost everything said about this case is just factually wrong.
The family was resident in Gaza. They had a British family member in the UK who wanted to sponsor the family's entry to the UK. The family applied to enter the UK and were, eventually, granted entry because their continued residence in Gaza was unjustifiably harsh and a breach of the UK resident family member's right to a private and family life under Article 8 of the ECHR.
That's it. It's a non-issue, a non-event. The family were refused by the Home Office, a First-tier Tribunal Judge upheld the Home Office decision but two Upper Tribunal Judges, sitting together, overturned the First-tier Tribunal decision.
The furore over the case has arisen from confusion relating to the application form used by the family. The Home Office require an applicant to use specific forms and, if no form exists, to use the most similar form. There is no form for this family's application so, as required by the Home Office, they used the most similar form. This happens to be the Ukraine Family Scheme form. The family did not try to be Ukrainian. They did not say they were Ukrainian. They just used the most similar form to make their application.
The Home Office refused the application stating the family did not meet the requirements of the Ukraine scheme – because, obviously! Eventually the Upper Tribunal concluded that the family's situation was unjustifiably harsh and therefore a disproportionate breach of the UK resident family member's right to a private and family life.
There is a lot more to unpick in this case but the simplest take away is this – the family never claimed or tried to be Ukrainian, and they did not use or rely on any sort of loophole to enter the UK. If a specified form had existed the family would have used it. Instead, the family did what the Home Office required them to do and applied on the most similar form.
Kemi Badenoch was, unsurprisingly, wrong. Sir Keir Starmer was wrong to jump on this particular bandwagon.
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