A PALESTINIAN family who are stuck in Gaza even though they have permission to join a family member in the UK claim the Foreign Office’s refusal to help them leave is “unlawful”, the High Court has heard.
In January last year, the family of six applied for entry clearance to the UK under the Ukraine Resettlement Scheme, because of their and their family members’ human rights.
This application was refused, but they appealed against the decision, and in January this year the Home Office confirmed that it would issue entry clearance, subject to the family attending a visa application centre and providing biometric information.
The High Court in London heard that to do this, the family, who have been granted anonymity, need consular support to leave Gaza.
They are challenging the decision of the Foreign Secretary to refuse their request for support, while the Foreign, Commonwealth and Development Office (FCDO) is defending the claims.
In written submissions, Tim Owen KC, representing the family, told the court the refusal of consular assistance was unlawful and “reached by a process which was procedurally unfair”.
He added that the decision maker “failed to follow the Secretary of State’s policy or practice” and that the “refusal of consular assistance constitutes a disproportionate interference” with their rights.
Owen said: “The court is invited to make a mandatory order that the Secretary of State take ‘all reasonable steps’ to assist the claimants in leaving Gaza.”
Speaking in court on Wednesday, Owen said Israel has “established a mechanism for consular requests to be made by third states for the departure of individuals”, but that the Secretary of State “won’t even make the request”.
Justice Chamberlain said: “The fact of the matter is they are living in very precarious circumstances and the question is whether the Secretary of State’s refusal to offer consular assistance in these circumstances is unlawful.”
He also said that the request would require “the expenditure of political capital”.
The judge said: “If you pick up the phone 20 times to someone and ask them to do something, then there is a danger on the 21st time, that answer will be no.”
He also said that it was a fact that the background of the case involved the generation of “a certain amount of political controversy”.
The family’s case drew attention in February when Keir Starmer said he wanted to close a “loophole” that allowed the family the right to remain in the UK after they applied through a scheme designed for Ukrainian refugees.
The Prime Minister said the decision was wrong.
Conservative Party leader Kemi Badenoch, who raised the case at Prime Minister’s Questions, said at the time: “This is not what the scheme was designed to do. This decision is completely wrong. It cannot be allowed to stand.”
After the exchange, the most senior judge in England and Wales said she “deeply troubled to learn of the exchanges” between Starmer and Badenoch.
The Lady Chief Justice, Baroness Carr, told reporters it was “for the Government visibly to respect and protect the independence of the judiciary”.
Before the hearing started on Wednesday Chamberlain asked lawyers for the Foreign Office to confirm how many people are still in Gaza with leave to enter the UK.
Julian Milford KC, representing the Secretary of State for the Foreign Office, said: “We are aware of 10 individuals with unconditional leave to enter who are still in Gaza.”
He added that there were a further 28 who had conditional leave to enter the UK, subject to biometric checks.
In his written submissions, Milford said there was guidance setting out who would usually be offered consular assistance.
He added: “The claimants do not fall within the guidance.”
Milford continued: “The defendant considers it critical that such support is only offered in exceptional circumstances.”
Speaking in court, he said: “We say the defendant’s decision on June 6 was a rational and lawful one.”
He added that the Secretary of State “was acutely conscious, and this remains the case, that facilitating departures from Gaza is a highly complex exercise that expends political capital.”
Milford said the Secretary of State “rationally took the view that there was nothing exceptional about the claimants’ cases”.
According to court documents, the family-of-six – comprising a mother and father and their four children – fled their home in Gaza following a 10-minute warning from the Israeli military.
Their home was destroyed by an air strike in Israel's assault on Gaza.
The hearing is due to conclude on Wednesday.
