COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
DAME ELIZABETH BUTLER-SLOSS
LORD JUSTICE LAWS
LORD JUSTICE WALL
| Nadarajah Senthuran
|- and -
|Secretary of State for the Home Department
Philip Coppel (instructed by Treasury Solicitor) for the Respondent
Hearing date: 1 July 2004
Crown Copyright ©
Lord Justice Wall:
…. 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.
The adjudicator's decision
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
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.
….. 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.
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  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.