IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
Smith Bernal Wordwave Limited
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MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
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"Apart from the issue of persecution and ill-treatment, I find that the other relevant material facts have established that the Appellant has the following relations in Germany who have been granted asylum there: his mother, brother, sister and sister's husband and their infant child. Copies of their passports/ID cards have been put before me. I am prepared to accept that these are the Appellant's genuine relations. I also accept that he is a single man who has no family in Sri Lanka. His sister has been to visit him here in the United Kingdom once and he has regular contact with them all by telephone."
The adjudicator had earlier recorded that in 1986 the applicant's father had been killed by the Sri Lankan security forces.
"35. Under this Article I have to determine the following separate questions:
1. Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
2. Is that interference in accordance with the law?
3. Does that interference have legitimate aims?
4. Is the interference proportionate in a democratic society to the legitimate aim to be achieved?
36. The Appellant does not have an established family life in Sri Lanka as he has no member of the family left there and he has been away from the country for the last 17 years. He left the country when he was very young. He is a single man with members of his close family living in Germany and enjoying their company, in person or by telephonic contact, is his 'family life'. He has no established family life in the United Kingdom either. However, whatever family life he has anywhere in the world, he is entitled to have access to it and enjoy it from the least convenient location in the world. The Appellant's sister has been to visit him in the United Kingdom and no doubt the other members would come to visit him as well as time goes by. Equally, if he himself were in a position to visit them in Germany in the future, I have no doubt he would visit them and enjoy their company, especially that of his mother. He keeps in contact with the family by telephoning them regularly.
37. The Appellant will not be able to enjoy the family life with his family in Germany if he is returned to Sri Lanka with the same ease and convenience as he has been so far doing while in the United Kingdom. The quality and strength of that enjoyment will diminish to a non-existent level, on account of the distance and the expense of telephone calls if he is to be removed to Sri Lanka. In the circumstances, although the Appellant has no family in the United Kingdom, I find that he still does have a 'family life' here for the purposes of the 1950 Convention. I therefore find that his protected rights under this Article are engaged which will be breached if he is returned to Sri Lanka. I find that the interference with his rights is not proportionate to the Respondent's legitimate aim of regulating immigration control."
"15. The situation as we see it is, that for a person to claim that there would be an interference with his private and family life here, he must first establish that he has a family life in the United Kingdom. However, it was found by the Adjudicator that the appellant had not established a family life in the United Kingdom. What the Adjudicator found was that the [appellant] had left Sri Lanka 17 years ago and had no established family life there, but, although he had not established family life in the United Kingdom either, he did have a 'family life' here for the purpose of the 1950 Convention as he would not be able to enjoy family life with his family in Germany if he were returned to Sri Lanka with the same ease and convenience which he has been doing so far while in the United Kingdom. The Adjudicator found that the quality and strength of that enjoyment would diminish to a non-existent level on account of the distance and expense of telephone calls if the appellant were removed to Sri Lanka.
16. In our considered opinion, the contention that the appellant would not be able to enjoy family life with his family in Germany, if he were returned to Sri Lanka, with the same ease and convenience as he as been so far doing while in the United Kingdom, cannot establish that the [appellant] has a family life in the United Kingdom. Either the appellant has family life in the United Kingdom or he has not. He cannot establish a family life in the United Kingdom on the basis that it is more convenient for him to be in contact with his relatives in Germany from the United Kingdom rather than from Sri Lanka."
The IAT accordingly allowed the Home Secretary's appeal on a ground which Schiemann LJ, in granting permission to appeal, understandably considered to be of general importance.
(1) Does the appellant enjoy (ie have) family life?
(2) If yes, will removing him from the United Kingdom be an interference with his right to respect for his family life? This I would hold to be a correct approach. While it will no doubt make it very difficult in most cases to establish interference with family life by removal from the United Kingdom if the family life which is established is located or centred elsewhere, it involves no such territorial barrier as the IAT, for no articulated reason, accorded to it.
"The fact is in our judgment that there is no family life in this case. What is being done here is an attempt to create a family life in this country. In our view Article 8 requires that there is as a matter of fact a family life in existence and the mere payment of money for the care of a child, and one visit to see that child, is not capable of creating a family life. Furthermore, the purpose behind the requirement that the sponsor is settled in this country is that the entry of dependants is only to occur if there is a settled family in this country. The whole tenor of the immigration rules is that those who seek to come to this country will either come individually on a temporary basis or if it is a question of setting up a life here will come for or remain for sufficient time to be entitled to settlement here. It is only if they are settled here that they are entitled to bring members of their family to this country in order to settle here and when one thinks about it the reasoning behind that is obvious. If they are not settled here then their position is precarious and they can at any time go back to whichever country they came from, in this case Nigeria.
6. There is in these circumstances no reason why the sponsor and her husband should not, if they feel the need to look after the little girl, go back to Nigeria and establish the family life there. This may seem a harsh approach, and in individual cases it will no doubt produce what may appear to be an unfortunate result, but the principle is in our judgment clear. It is not possible to use the Human Rights Act in order to establish a family life in this country so that dependants who otherwise would not be able to enter this country because the sponsor was not settled here, can do so. That is not in our view what Article 8 is intended to cover. It is intended to protect the existence of an actual family life which would be interfered with were the particular decision to be refused and that of course will happen or may happen where the sponsor is indeed settled in this country but not where he or she is not so settled."
"Generally, the protection of family life under Article 8 involves cohabiting dependents, 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 acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
This, while it is not black-letter law, sets out what I would accept is a proper approach.