England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/2004

Lord Justice Wall:

1. This is the judgment of the court.
2. On 1 July, 2004, having heard counsel for the Secretary of State, we announced our decision in this case, namely that the appeal would be allowed; that the decision of the Immigration Appeal Tribunal (IAT) would be set aside; and that the Secretary of State's appeal against the decision of the Immigration Adjudicator would be remitted to the IAT for rehearing. We reserved our reasons for that decision, which we now give.

The appeal

3. Mr. Nadarajah Senthuran (the Appellant) appeals, with permission granted by Maurice Kay LJ on paper on 28 May 2004, against a decision of the IAT, notified on 13 November 2003 following a hearing on 3 October 2003, which allowed an appeal by the Secretary of State against the decision of Mr. B Andonian, an Immigration Adjudicator dated 28 March 2003, following a hearing on 14 March 2003.
4. The Appellant's application for asylum was refused by the Secretary of State by letter dated 16 October 2001, and was also certified as one to which the subsequently repealed provisions of paragraph 9(4)(b) of Schedule 4 of the Immigration and Asylum Act 1999 applied because: -

…. your fear of persecution is manifestly unfounded and that your claim is one to which paragraph 9(7) does not apply because you have adduced no evidence of torture in Sri Lanka.

5. The Appellant appealed. The Adjudicator dismissed the Appellant's asylum appeal, but did not uphold the Secretary of State's certificate with respect to the asylum claim. The Adjudicator allowed the appeal under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Human Rights Convention).
6. The Secretary of State appealed to the IAT against the Adjudicator's Article 8 determination with the permission of the Acting Vice-President given on 23 May 2003. The Appellant did not seek to appeal to the IAT against the dismissal of his asylum claim.

The facts

7. The Appellant, who is a citizen of Sri Lanka and a Tamil, was born on 21 June 1980. He arrived in the United Kingdom on 26 July 1997, a month after his 17^th birthday. He applied for asylum on the ground that he had a well-founded fear of persecution in Sri Lanka. For reasons, which the Secretary of State gives in his refusal letter of 16 October 2001, the Appellant was not interviewed about the substance of his claim. Notice of refusal of leave to enter after refusal of asylum was given on 31 October 2001. The Appellant appealed under cover of a letter dated 16 November 2001. He also set out additional grounds for claiming asylum, including claims based on Article 8 of the Human Rights Convention. We have not seen these additional grounds, but do not need to do so since they appear, from the Secretary of State's supplementary reasons for refusal letter dated 16 October 2002, to deal with the possible extra-territorial effect of Article 8, and are not germane to this appeal.
8. It will be immediately observed from the chronological sequence set out in the previous paragraphs, that more than four years elapsed between the Appellant's arrival in the United Kingdom, and the Secretary of State's first letter giving his reasons for refusing the asylum claim. Throughout that time the Appellant was living in the United Kingdom with at least one of his brothers or sisters.

The adjudicator's decision

9. The reasons given by the adjudicator for finding that the Appellant's removal from the United Kingdom would both constitute a breach of his Article 8 rights and be disproportionate, were as follows:

13. The Appellant's brother, Kajenthiran, and sister, Subanthy, were granted refugee status. The Appellant's other sister's husband is a refugee and the Appellant's brother Suthakumar, and mother are waiting for their appeals to be heard. The Appellant's mother came to the United Kingdom with three of her grandchildren in the year 2002. Their parents were killed by the army in 1994, when they were arrested on suspicion of having supplied banned items to the LTTE.

14. The Appellant said that he had lost contact with his father, and before he retired he worked as a technical assistant in the immigration department in Kilanochi. He retired with a pension and decided to return to Meesalai. The family wrote eight or nine letters to him but have not had any reply.

15. The Appellant is currently working and studying. He had been working for the Royal Mail as a postman for about six months. Before that, he was a cashier in a restaurant. He studies on a course for information technology. This course leads to a degree course and lasts two years.

16. The Appellant's brother, who has refugee status, works in a hospital pharmacy and is studying for a degree in pharmacology. He expects to qualify in two years time. The Appellant's sister qualified as a nurse in Sri Lanka and works in a hospital in the UK. She will be sitting a hospital examination later this year. The Appellant's brother, Suthakumar, works for a food company as a general assistant.

17. The Appellant said that he had no family to return to in Sri Lanka. His brothers and sisters are both refugees. They are people who contribute to the economy in this country, as does the Appellant. They do not benefit from public funds. The Appellant arrived in this country when he was 17 years of age and, even though he was a minor, the Home Office took an extraordinarily long period of time, namely over four years, to make a decision on his case. That was unreasonable, in my view, and gave the Appellant an expectation that he would in due course be entitled to remain in this country, and cashing in on that expectation he regarded himself as settled and found a job and studied as well. That progress, as far as he is concerned, has been continuing to date. The Appellant supports himself and lives in a close family unit with his mother, brothers and sister.

The decision of the IAT

10. In paragraph 3 of its determination, the IAT deals with the history very shortly and in the following terms: -

The claimant is a Sri Lankan Tamil who was born on 21 June 1980. He is now 23 years old. He arrived in this country when he was just seventeen on 26 July 1997. He claimed refugee status; the refugee status was refused in 2001.

11. The IAT then identifies the issue to be decided in the following terms: -

….. whether family relationships that the claimant undoubtedly has with other people in this country are sufficient, (a) to establish that he has a family life here; and (b) that it would be disproportionate for that family life to be interfered with.

12. We propose to set out the balance of the IAT's judgment in full: -

4. The members of his family who are here are much older than him and they are his brothers and sisters. Recently his mother some nephews and nieces have arrived in this country as well but the principal relationship would appear to be with his brothers and sisters. These are aged 36, 32 and 30, and as far as I am aware, there may be another brother or sister of a similar sort of age. Some of these members of the family live with the claimant in Wembley where he works as a postman and where he has also studied at Harrow College on a student course dealing with access to information technology. He says that whilst he keeps in touch with his family here he has no family left in Sri Lanka. As I have already mentioned, his mother has come to this country, that was in 2002, and three teenage nieces and nephews have also come. We will assume, giving him the benefit of the doubt that he is in regular touch with them.

5. It was said by the Adjudicator that the family relationship which he has established which I have just outlined, were such that in the circumstances of the case it would be disproportionate to allow the ordinary immigration laws of this country to prevail. We do not agree. We have been assisted today by the authority of the Tribunal in the case of Salad [2002] UKIAT 06698 following a finding of the European Commission of Human Rights in the case of Advia (sic: should be Advic v United Kingdom (20 EHRR CD125)) which held that in the ordinary course of events the fact that there are siblings in the same jurisdiction as an applicant does not establish a family life per se. There must be some genuine connection between siblings for family life to obtain, particularly where one is dealing with adults. I will cite the paragraphs that appear to me to be relevant.

13. In Advia (Advic) the Commission said: "Nevertheless in accordance with the Commission's case law the exclusion of a person from the country in which his close relatives reside may raise an issue under Article 8 of the Convention. However, in examining cases of this nature the Commission's first task is to consider whether a sufficient link exists between the relatives concerned to give rise to the protection of the Article of the Convention. Although this will depend on the circumstances of each particular case, the Commission has already considered that the protection of Article 8 did not cover links between adult brothers who had been living apart for a long period of time and who are not dependent on each other. Moreover, the relationship between a parent and adult child will 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.

6. We consider that if one is to follow Advia (Advic) it would seem in this case that the claimant may not have established that there is in fact that family relationship that could give rise to protection under Article 8 of the Convention. The claimant is financially independent, he works for the Post Office, he is not dependent upon other members of his family and they are not dependent upon him. He is now a twenty three year old man. It seems to us that a person in that position cannot bring himself under Article 8 of the Convention, he has reached the age where normally one would expect someone to be leading an independent life and he is. If we were to be wrong about that we would conclude that it would be manifestly proportionate for the immigration laws of this country to be applied. Insofar as there is any family life at all for this claimant in this country it is tenuous. If the claimant wishes to visit members of his family in this country after being returned to Sri Lanka, he may, of course, make an application in the usual way to the High Commission in Colombo for a visitor's visa and he can see the family then. We appreciate, of course, that it would be difficult if not impossible for some members of the family to travel to Sri Lanka to see him, although this is a matter to be taken into account it is not one that we consider in the circumstances of this case to be of particular importance.

7. In all the circumstances, therefore, we consider:

(a) that no family life, sufficient to attract the protection of Article 8 actually has been shown to exist in this case; but

(b). if it has, then the immigration laws of this country must take precedence over any Article 8 issues.

For these reasons this appeal is allowed.

Analysis

13. It is, we think, reasonably clear from paragraph 7(a) of the determination that although the IAT uses the word "may" in the second line of paragraph 6 of its determination ("the claimant may not have established that there is in fact that family relationship that could give rise to protection under Article 8 of the Convention") the IAT in fact decided that Article 8 of the Human Rights Convention was not engaged because no family life had been shown to exist.
14. In reaching that conclusion, the IAT relied on both Advic and Salad. However, as the IAT's citation from Advic makes clear, the first task is to consider whether a sufficient link exists between the relatives concerned to give rise to the protection of Article 8. This, inevitably, is a question of fact. In Advic, the Commission held that Article 8 of the Human Rights Convention "did not cover links between adult brothers who had been living apart for a long period of time and were not dependent on each other". In Salad, there had been no contact between the Appellant and her siblings after the latter had left Somalia, and she had spent only a very short time living with them in the United Kingdom. There was no evidence of dependency beyond normal ties between siblings, and Article 8 was not engaged.
15. We do not think that Advic is authority for the proposition that Article 8 of the Human Rights Convention can never be engaged when the family life which it is sought to establish is that between adult siblings living together. In our judgment, the recognition in Advic that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both Adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Article 8 is or is not engaged in a given case.
16. We are very conscious of the pressures under which both Adjudicators and the IAT have to work, and we recognise equally that it is not for this court to pore over every nuance in an adjudication or IAT determination. However, the simple and well-established fact remains that the IAT has a duty to give adequate reasons for its decisions, and litigants are entitled to know why they have won or lost, particularly in a jurisdiction where the consequences of success or failure are so profound.
17. In our judgment we do not think the reasoning of the IAT sufficient to justify its conclusion that Article 8 is not engaged on the facts of this case. We reach that conclusion for several reasons.
18. Firstly, it is a striking feature of this case that the Appellant arrived in the United Kingdom in 1997 at the age of 17, and has been living continuously with one or more of his siblings ever since. These two aspects of the case immediately distinguish it, on its facts, from both Advic and Salad.
19. Secondly, an equally striking feature of the case is that more than four years elapsed between the Appellant's arrival in the United Kingdom and the Secretary of State's refusal letter. The Adjudicator described the length of time taken by the Secretary of State to make a decision on the Appellant's case as "unreasonable". It is difficult to quarrel with that observation.
20. In our judgment, the facts we have identified in the preceding two paragraphs are manifestly relevant to the IAT's consideration of Article 8, both in relation to the existence of family life and the proportionality of any interference with it. Yet it is clear from the IAT's reasoning (the whole of which we have set out) that it did not bring them into the equation. To put the matter in a slightly different way, the recitation of the Appellant's circumstances contained in paragraph 4 of the adjudication upon which the IAT founds its conclusion that there is no family life (alternatively that it is tenuous and interference by removal from the United Kingdom would be proportionate) appears to leave wholly out of account the highly relevant factors identified in paragraph 18 and 19 of this judgment.
21. For the Secretary of State, Mr. Coppel argued that the decision had to be read as a whole. He made a valiant attempt to persuade us that the IAT had these matters in mind, since it had recited them as facts in paragraph 3 of its adjudication (set out at paragraph 10 of this judgment). We agree, of course, that the decision must be read as a whole. However, as Laws LJ pointed out during the course of the argument, there is a substantial qualitative difference between a tribunal reciting facts as part of the history, and a tribunal incorporating the same facts into its reasoning process. It is clear to us, despite Mr. Coppel's submissions, that the reader of the determination would simply be at a loss to know what, if anything, the IAT made of those matters; and in those circumstances there was a failure of the duty to give reasons.
22. We also think that certain of the findings made by the Adjudicator needed to be addressed if his decision was to be reversed. What weight should be given to them in relation to either limb of the Article 8 equation will be a matter for the IAT on its reconsideration of the Secretary of State's appeal. At this point, we simply record them. The Adjudicator found that the Appellant had been tortured: he appears, accordingly to have found the Appellant credible. The Adjudicator found that the Appellant had no family in Sri Lanka. The Adjudicator also found that the Appellant lived "in a close family unit with his mother, brothers and sisters", although whether his mother will be permitted to stay in the United Kingdom is, of course, an open question. Finally, both on the existence of family life and in relation to proportionality, the Adjudicator was plainly influenced by the delay in processing the Appellant's claim.
23. In these circumstances, and for these reasons, we do not think that the IAT's reasoning is adequate to support its conclusion. It follows that its determination must be set aside, and the Secretary of State's appeal will be remitted to the IAT for re-hearing.
24. We wish to make it quite clear that the issues in the appeal when it is re-heard will be at large. We did not hear counsel for the Appellant, and she will be free at the hearing of the appeal to advance all the arguments she did not have the opportunity to advance before us. We wish to make it equally clear, moreover, that nothing in this judgment should be read as indicating what the outcome of the appeal should be. We have set aside the determination of the IAT because its reasons are insufficient to support it. A different constitution of the IAT will now re-hear the appeal, and will reach whatever conclusion it thinks right on the arguments placed before it.