Upper Tribunal Considers that Scope of Article 8 Is Elastic Enough Thereby Enabling a By- Passing of the Adult Dependent Relative Rules by Reference to Exceptional Circumstances

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Where there had been lingering doubts  as to whether an “adult dependant relative appeal” can ultimately succeed on the basis of Article 8 of the ECHR before the Tribunal, the newly reported decision of Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 28 (IAC),   answers this question in the positive.

The appeal in Dasgupta arose out of a refusal of an application under the adult dependant relative rules and although that Rule was considered by the Tribunal   not to have been met by the Appellant, Article 8 considerations and the allowing of the appeal on exceptional circumstances, outside the Immigration Rules by the First Tier Tribunal   have been upheld by the Upper Tribunal. This is despite the First Tier Judge being observed not to have followed a “more structured“ approach to relevant Article 8 considerations.

Whether this means that in future, Entry Clearance officers making initial decisions upon similar applications will readily embrace the   approach of the Upper Tribunal is another question – however having regard to the harsh approach consistently taken by decision makers abroad in relation to the adult dependant relative rules and the Respondent in defending those decision before the Tribunal, it is very doubtful that this will be the case.

The Upper Tribunal in Daspgupta considered several issues, among them as follows:

  • Whether family life arose between an 85year old parent with his UK adult settled daughter; correspondingly whether family life similarly arose with that same applicant as a grandparent  in relation to his daughter’s minor British children;
  • The approach to be taken by the Upper Tribunal in error of law appeals;
  • Re-iteration by the Upper Tribunal as to the ultimate question for the Tribunal in Article 8 appeals in relation to the proportionality exercise as per Huang v Secretary of State for the Home Department [2007] 2 AC 167.

THE FACTS

The Appellant was  a national of India, aged 85 years and had been a widower since 2007.  He had retired in 2001 from his previous occupation.  He made an  application for clearance to enter the United Kingdom as an adult dependant relative under Appendix FM of the Immigration Rules.  His daughter, an  NHS Doctor,  settled in the UK was the sponsor. She was married  and  had two  British minor  children. She had lived in the United Kingdom for almost 25 years. The Appellant had been visiting this family with some frequency.  By the time of the grandmother’s death in 2007, a very close and loving bond had been established between grandparents and grandchildren through visits from India to the United Kingdom and vice-versa, coupled with family reunions in the United States, where the sponsor’s brother resided. Since 2007 the Appellant had visited his daughter’s family in England almost annually, each sojourn lasting three – five months. The Appellant had developed a strong and close relationship with his grandchildren  and there are robust ties of mutual love and affection.  It was also accepted by the Upper Tribunal as unchallenged facts that in short, the Appellant had gradually assumed a special position in the lives of his grandchildren. Simultaneously, the father/daughter relationship between the Appellant and the sponsor had continued and flourished, notwithstanding the factors of distance and marriage and had, if anything, strengthened during recent years following the demise of the Appellant’s wife and in conjunction with his gradually deteriorating health.

The Entry Clearance Officer (ECO) refused the application  on 27 June 2013. By determination promulgated on 06 August 2014 the appeal was  allowed,  succeeding  under Article 8 ECHR but being  dismissed under the Immigration Rules.

The ECO,  represented by the Secretary of State sought, and was granted, permission to appeal. When permission was  granted to the ECO, the Appellant had an application, undetermined, seeking permission to appeal on the ground that the First Tier Tribunal  should also have allowed the appeal under the Rules and decided that the adult dependant relative rule is, at least in part, not in accordance with the law and/or is incompatible with Article 8 ECHR.  Having learned that the ECO had been granted permission to appeal, the Appellant lodged a “cross-appeal” on the same grounds.  The  Appellant was granted permission to appeal.

ISSUES IN THE APPEAL TO THE UPPER TRIBUNAL

  • The Secretary of State’s primary case was that the First Tier Tribunal erred in law in concluding that there was family life protected by Article 8 of the ECHR.
  • It was contended, in the alternative, that the First Tier Tribunal erred in law in allowing the Appellant’s appeal under Article 8 out with the framework of the Rules.
  • By his cross-appeal, the Appellant contended that the First Tier Tribunal erred in law in dismissing his appeal under the Rules. The contention underlying this proposition was that the relevant provision of the Rules is unlawful as it is ultra vires and/or irrational and/or incompatible with Article 8.

It was noted by the Upper Tribunal that both parties agreed that the first question raised by the cross-appeal was whether the Upper Tribunal is competent to consider a challenge of this kind. If “yes,” the second question was  whether the Appellant’s challenge to the offending provision of the Rules was  established. If “yes”, the third question focused on the consequences which follow, in broad terms  to the issue of relief or remedy.

CASELAW CONSIDERED BY THE UPPER TRIBUNAL

THE TRIBUNAL’S CONSIDERATIONS AND DECISION

  • Family Life:

At paragraph 11 of their decision, the Upper Tribunal stated that the decision in GHB v United Kingdom and those reviewed by the Court of Appeal in Singh lend emphasis to the proposition that the question of whether there exists family life between, or among, those under scrutiny will invariably be an intensely fact sensitive one. The Upper Tribunal observed  that the  scope of the protection afforded by Article 8 is elastic, not susceptible to precise measurement.

The Upper Tribunal did accept the Secretary of State’s criticism that the First Tier Tribunal did not conduct the exercise of acknowledging, and then applying, the principles in Kugathas and other  line of authority.  It was also observed that  the First Tier Tribunal  did not carry out the “Razgar” exercise.  In addition, the obligation imposed by the Tameside principle to pose the correct question – namely whether there was family life – was not explicitly discharged. The Upper Tribunal in response however   noted that  as the House of Lords had made clear, decisions in human rights cases, save where the Convention right in question has a procedural content  are about outcome, rather than the anterior decision making process.

The Upper Tribunal noted that the Secretary of State criticised the determination of the First Tier Tribunal  primarily on the basis that it consisted of extensive recitation of evidence, coupled with very few explicit findings of fact.  The Upper Tribunal responded stating  that as appellate courts have frequently observed, while this is sometimes a vice it is not necessarily fatal. Furthermore, it was considered to be  of no little significance that the existence of family life in respect of all members of the family circle identified, was not disputed before the First Tier Tribunal. In particular,  the Upper Tribunal stated that they  were informed, and accepted, that there was no cross-examination of the Appellant’s daughter.  It was considered that this was  consistent with the ECO’s decision, which did not dispute the nature or depth of the relationships under scrutiny. It was  also reflected in the Secretary of State’s grounds of appeal to the Upper  Tribunal, which contained no complaint about the First Tier Tribunal’s  approach to the topic of family life. The   Upper Tribunal therefore  attached  significant weight to these considerations. It was considered that it was  within this context that the upper Tribunal would  evaluate what  the Secretary of  State  characterised the First Tier Tribunal’s “assumption” that there was  family life in relation to the five family members  concerned.

  • Applicability of the Edwards v Bairstow principles and family life findings:

 At paragraph 17 of their decision, the Upper Tribunal also emphasized the  enduring application and pedigree of the Edwards v Bairstow principles; As this was an error of law appeal and not a challenge on the merits,  the Upper Tribunal stated that they would  apply the Edwards v Bairstow [1956] AC 14 prism.  In that case,  in an error of law appeal, the House of Lords applied the standard of ” the true and only reasonable conclusion” open to the Commissioners and, notably, in doing so, employed the language of ” perversity“.  They defined the latter as a case in which – ” ….. the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal.” as [per Lord Radcliffe and in  the language of Viscount Simonds, ” For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”

The Upper Tribunal therefore applied the Edwards v Bairstow principles to the appeal.  It was noted that within   the decision of the First Tier Tribunal  there was an underlying acceptance of Article 8 family life involving all five people in question.  The Upper Tribunal considered  that their  scrutiny of the decision of the First Tier Tribunal  must take into account both the evidence available to it, its undisputed nature and the significant contextual factor, also uncontentious, that the existence of family life among the five relatives concerned was not contested. Weighing all of the evidence in tandem,  which was considered to  illuminate the content of the  First Tier Tribunal’s  decision, the Upper Tribunal concluded that it withstood   the Secretary of State’s challenge.

In the Upper Tribunal’s  judgement,  the assumption, or finding  of family life underlying and underpinning the decision of the First Tier Tribunal  was properly open to the Judge having regard to the findings express or implicit in the decision, the available evidence, the terms of the ECO’s decision and the de facto concession. In these particular circumstances, while a more structured approach coupled with more extensive findings by the First Tier Tribunal  would have been preferable, this did  not vitiate its decision. No error of law had  been demonstrated.

  • Best interests of the children:

 It was also noted by the Upper Tribunal that the   Judge found, that the best interests of the two grandchildren would be promoted by the advent of the Appellant to live with their family and the continued presence of the mother in the family unit. The  Upper Tribunal  considered  these findings to be unimpeachable.  The  Judge committed no error of law in his approach to the best interests of the grandchildren. In substance, he viewed this as a primary consideration. This consideration  was  to be evaluated in tandem with the Judge’s other findings and the weight given by him to the cultural issue specifically raised. All of the ingredients in this equation must be considered as a whole.  The Secretary of  State’s submission  that they are insufficient to justify a finding of exceptional circumstances,  viewed through the prism of conventional public law litigation, were considered to  have all the hallmarks of an irrationality challenge.  It was noted that  the Court of Appeal stated recently in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190,  that the question for the appellate court or tribunal in such cases is whether the decision of the first instance tribunal on this issue is “one that was open to it”.  Framed in somewhat more elaborate terms, the test is whether it is sustainable by reference to the principles in Edwards v Bairstow,

  • Exceptional Circumstances:

 The Upper  Tribunal considered that  the question for  them was  whether, viewing the decision of the First  Tier Tribunal as a whole, its finding of exceptional circumstances was  sustainable in law. This, in the context of an error of law appeal, required the Upper Tribunal  to pose the question of whether the decision was  compatible with the Edwards v Bairstow principles. The upper Tribunal concluded that the Judge’s exceptional circumstances conclusion, uncontaminated by any legal misdirection or other error of law, lay within the range of outcomes reasonably available to him, was not contradicted by the evidence but, rather, had a sufficient evidential foundation and did not leave anything material out of account.  The Upper Tribunal were  satisfied that this conclusion was ” open to” the First Tier  in the circumstances.

  • Proportionality:

It was noted by the Upper Tribunal that the First Tier Tribunal having made no error in its approach to the existence of family life linking and uniting the several persons concerned, the next question which it was bound to address was whether the impugned decision represented a disproportionate interference with the Article 8 rights of the family members. Having found that the Appellant’s settlement application could not succeed under the Rules, the Judge, in order to decide the question of proportionality, had to apply the recognised test of exceptional circumstances and proceeded to do so. His finding that exceptional circumstances existed equated to a conclusion that the impugned decision interfered disproportionately with the Article 8 rights of the family members concerned. It was considered that in  thus concluding, the Frist Tier Judge  was giving effect to Huang v Secretary of State for the Home Department [2007] 2 AC 167, where the House of Lords held that when deciding appeals on human rights grounds, it is the function of the relevant immigration appellate authority to conduct a full merits appeal as the arbiter of all aspects of the human rights claim, including proportionality. The Upper Tribunal  could detect no error of law in the conclusion reached by the First Tier Tribunal  on the issue of proportionality. Neither the decision making process of the First Tier  nor its outcome disclosed any such error.  It was noted that as the Secretary of State’s challenge was the sufficiency of reasons and evidence underpinning the impugned conclusion, for  the reasons provided by the Upper Tribunal, that  challenge  was not made out.

CONCLUSION

There were clearly issues, evidence and factors in favour of this particular Appellant  leading to the successful outcome in his Article 8 appeal. Success in the particular  context  will however clearly depend on the facts  of each case

It is however important to note that although the outcome in this appeal was positive, the Edwards v Bairstow principles can equally  be used   to justify  refusals of  permission to appeal both  against  Appellants and the Respondent in error of law arguments.

The outcome in DasGupta, although very  welcome,  seems to leave a remaining  issue unanswered  to any illuminating extent   having regard to Paragraph 7 of the  decision of the Upper Tribunal.  By his cross-appeal, the Appellant  was noted to have contended that  the adult dependant rule was unlawful as it is ultra vires and/or irrational and/or incompatible with Article 8. Further, earlier at paragraph 2 of their decision,  the Upper Tribunal  had noted that  at the stage when the Secretary of State was granted permission to appeal,  the Appellant had an application, undetermined, seeking permission to appeal on the ground that the First Tier  should also have allowed the appeal under the Rules and decided that the adult dependant relative rule is, at least in part, not in accordance with the law and/or is incompatible with Article 8 ECHR.  The “cross-appeal”  was then  lodged by the Appellant on the same grounds. The Upper Tribunal then  set out the part of the decision of the second permission Judge as follows:

” It seems to me that the Appellant’s submissions, in suggesting that the Upper Tribunal could deal simultaneously with the case as a judicial review (deploying a High Court Judge), has [sic] not only technical obstacles (no such application having been made) but overlooks that a challenge to the vires of the Rules is excluded by the Lord Chief Justice’s Practice Direction governing UT judicial reviews. However, there is some authority for the proposition that in exercising its statutory ‘in accordance with the law’ jurisdiction …. the Upper Tribunal in deciding appeals cannot exclude issues going to vires.”

The Upper Tribunal noted at paragraph 6 of their decision that  First Tier Judge had  determined the appeal by concluding that the  relevant provisions of the Rules are not ” discriminatory, manifestly unjust, made in bad faith or [involving] an oppressive or gratuitous interference with people’s rights …. [and are] not an inherently disproportionate interference with rights to respect for family life“.

The Upper Tribunal ultimately dismissed the appeal of the Secretary of State and affirmed the decision of the First Tier Tribunal.  Even though  the Appellant  succeeded  under Article 8,  it  would however  have made very interesting reading  if the Upper Tribunal had given some   preliminary view  themselves  in the very  same  decision as regards whether they  thought  that  the Adult Dependant Relative  Rule  could potentially be  unlawful as ultra vires and/or irrational and/or incompatible with Article 8.

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