Court of Appeal Clarifies Correct Approach in Adult Children Article 8 Cases

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The Court of Appeal has  recently,  in the case  of PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612, sought to  set  out the law as to the circumstances in which an adult child can be regarded as enjoying family life with his parents and/or siblings.

Undertaking Article 8 considerations  with a reference  to the correct legal principles, especially that set out in  caselaw,  is paramount as noted in PT(Sri Lanka).  In addition to  relevant  considerations,  the Court of Appeal  however also  raised several criticisms:

  • The Court  criticised the lack of reference  by the Tribunal to the relevant case of   Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAT) which had been decided over a year previously, or indeed to any of the domestic or Strasbourg authorities reviewed in it.

  • There was  also criticism directed at the respective representatives before the Tribunal, with the Court stating that, “Although neither party was represented by counsel, I would have expected a competent immigration consultant and, perhaps still more, a Home Office Presenting Officer to be sufficiently familiar with the relevant case-law to ensure that it was placed before the Tribunal”.

  • The Court noted that in their considerations, matters before it were rendered more difficult by the fact that they did not have a clear picture of what the evidence before the First Tier Judge consisted of. The Court did not have before it the original application to the Entry Clearance Officer or any materials that accompanied it; nor did they have the bundles in the form that they were before the First Tier Tribunal.

  • The Court   was also critical of the fact that the Appellant had lodged for the purposes of the appeal before them, a number of new materials, including published reports on South Asian family norms and new witness statements from his family members. It was observed that as those advising him should have appreciated, that material was not admissible. The only question before the Court of Appeal whether the First Tier Tribunal reached a conclusion that was open to it in law on the evidence that was before it.

Background in Summary:

The Appellant, a Sri Lankan national, was born on 26 June 1991.  On 3 August 2010, his father was granted indefinite leave to remain in the UK.  In February 2012, the Appellant and his mother and sisters  applied for entry clearance to join the father in the UK.  At that date the Appellant was aged 20. His sisters were still under 18.  The Appellant’s   application  was refused 18 April 2012 by the Entry Clearance Officer  however his mother and sister’ s applications were successful and they came to the UK shortly afterwards. The Appellant was the only member of the immediate family left in Sri Lanka.

The appeal  to the  First-tier Tribunal (the FTT)  relied on paragraph 317 of the Immigration Rules,  and it was also contended that refusal would represent an unlawful interference with the Appellant’s rights under article 8 of the European Convention of Human Rights by  preventing  him from enjoying family life with his parents and siblings.  Both tiers of the Tribunal dismissed  the appeal on the grounds raised. The  Appellant appealed directly to the Court of Appeal.

The appeal to the Court of Appeal:

The challenge to the Court of Appeal proceeded on the basis of article 8.

It was noted that the FTT Judge had found that   the Appellant failed  at the first hurdle. He was  an adult, and while financially dependent on the rest of his family in the UK,  there was considered to be  no evidence before the Tribunal  to suggest that this relationship would acquire the protection of Article 8 without evidence of further elements of dependency. It  was concluded by the FTT Judge  that it  would be proportionate for the Appellant as an  adult  to continue his life in Sri Lanka. In short, the FTT held that article 8 was not engaged  but that if it was the interference with the Appellant’s family life was justified.

In brief, the Upper Tribunal’s conclusion was that the FTT’s conclusion that article 8 was not engaged was justified by the fact that the Appellant was an adult and that  there were no special ties of dependency which should bring  him  within the ambit of Article 8.

The Court of  Appeal granted permission to  appeal as it was considered  arguable that the FTT Judge had not correctly stated the law as to the circumstances in which an adult child could be regarded as enjoying family life with his parents and/or siblings; and that if the correct approach had been taken to that question, the FTT Judge ‘s decision that article 8 was not engaged was unsustainable on the facts.

Relevant Caselaw Considered:

Key Caselaw  considered on the Issues – Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31:

At paragraph 14 of his judgment  in Kugathas, Sedley LJ quoted the statement of the Commission in S v United Kingdom and said that:

“Generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily require the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

Sedley LJ also stated at  paragraph  19 of his judgement:

“Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely found and whom we visit, or who visit us from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.”

Key Caselaw considered on the Issues – Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAT):

The Court of Appeal in PT(Sri Lanka) stated that it appeared to have been the case that some tribunals have read Kugathas as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage article 8.  It was noted that in Ghising the Upper Tribunal  was critical of that reading. Ghising observed at paragraph  56 of its determination that, “the judgment in Kugathas has been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts”. It continued, at paragraph  57, to point out that several authorities had recognised that family life may continue between parent and child even after the child has reached the age of majority.

The approach of the Upper Tribunal in Ghising was approved by the Court of Appeal  in R (Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8 at paragraph  46  of the judgement.

Key Caselaw considered on the Issues :Singh v Secretary of State for the Home Department [2015] EWCA Civ 630:

In Singh, Sir Stanley Burnton, reviewed most of the authorities referred to in Ghising though not, Ghising itself (or Gurung). He concluded, at paragraph  24 of his  judgement:

“I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8.”

Court of Appeal’s Considerations and Conclusions in PT(Sri Lanka) :

The Court stated in PT(Sri Lanka) that the position is that Sedley LJ’s statement of the applicable principles in Kugathas has not been in any sense disapproved since it requires a fact-sensitive approach – but that it requires to be understood in the light of the subsequent case-law helpfully summarised in Ghising.

It was noted that there was no reference  in  the FTT Judge’ decision in PT(Sri Lanka) to Ghising, which had been decided over a year previously, or indeed to any of the domestic or Strasbourg authorities reviewed in it.  The Court  observed that although neither party was represented by counsel, they would have expected a competent immigration consultant and, perhaps still more, a Home Office Presenting Officer to be sufficiently familiar with the relevant case-law to ensure that it was placed before the Tribunal.

Family life:

It was however considered that the absence of any reference to Ghising did not mean that the FTTJ’s self-direction was wrong. The real question  was  how the Judge understood the effect of Kugathas. That could  only be established by considering his conclusion in the light of the evidence before him. The Court  stated that  that  exercise  was  rendered more difficult by the fact that they  did not have a clear picture of what that evidence consisted of.  They did not have the original application to the Entry Clearance Officer  or any materials that accompanied it; nor did they have the bundles in the form that they were before the FTT.  It was also observed  however that the Appellant and his present advisers may not be wholly to blame for this, since it appeared  that the very  initial legal advisor  did not retain his full file (and  had  been criticised by the Office of the Immigration Services Commissioner for that failure). Although it was considered understandable that the Appellant’s family had not kept copies themselves, it was considered unfortunate that no approach appeared  to have been made to ask the Home Office to produce whatever was on its own file.

In relation to whether article 8 was engaged, the Court of  Appeal did not consider  that the FTT’s conclusion were  sustainable, and therefore  the Upper Tribunal  erred in law by failing so to find. The probability must have been that the Appellant enjoyed a family life with his mother and sisters of the kind protected by article 8. It was not simply a matter of “normal emotional ties”. The Appellant was a single student, living with his family, who had attained adulthood less than two years previously. The Court stated they  would if necessary,  reach that conclusion without reference to “South Asian cultural norms”; but  that it  would be rather surprising if it were not within the knowledge of judges of the Immigration & Asylum Chamber of the First-tier Tribunal whether such norms applied.

Proportionality question:

The Court of Appeal did not however  consider that  the  FTT  judge made any error of law in this part of the determination when considering proportionality  issues.  While it was  correct that the issues under rule 317 and article 8 are not identical, they involve consideration of very similar factors.  The FTT Judge found that while the Appellant had a degree of dependence on his mother and sisters while they lived together as a family, he was able to make the transition to living on his own as an independent adult (notwithstanding a degree of financial dependence) albeit somewhat sooner than might otherwise have been the case. Those findings were  not challenged  and it was  not suggested that there was evidence before the FTT of any special impact on the Appellant of being separated from his mother and sisters. In  the Court’s view, the Judge’s findings  were  an adequate basis for his conclusion that the separation of the family was proportionate in the interests of a consistent system of immigration control.

The Court stated that it is not the law, in the Strasbourg jurisprudence any more than under the Immigration Rules, that there is a right for adult children always to join their parents or siblings in their country of residence. Identifying cases where such a right may nevertheless arise under the Convention requires FTT judges to make fact-sensitive assessments in areas where there are no bright lines and where the outcome will sometimes be a sad one in human terms. It was considered that the Court of Appeal  should not interfere with such assessments unless they are based on a misunderstanding of the law or are plainly wrong and that this was  not so  in this case.

The Court of Appeal concluded that the FTT Judge was wrong to find that the Appellant did not enjoy any family life with his mother and sisters so as to engage article 8 of the Convention, but found that the FTT Judge  was entitled to find that the denial to him of leave to enter the UK together with them was a justifiable interference with that right. The Upper Tribunal  was thus  considered to have  made no error of law in dismissing his appeal.

Conclusion

Depending on the facts of a case, it is therefore possible  to argue  by reference to helpful caselaw,  that an adult  child passes the  first hurdle thus establishing that family life exists with the respective family members settled or coming to settle  in the UK.  However, as  the case  of PT(Sri Lanka) shows, considerations and  issues of proportionality  in relation to exclusion or removal   might stand in the way of ultimate success.

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