COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
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Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE THOMAS
| CHENGJIE MIAO
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Ms E Grey (instructed by Treasury Solicitor) for the Respondent
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Lord Justice Sedley :
The judgment which follows is the judgment of the court.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- Is the interference necessary in a democratic society for the prevention of disorder or crime?
- If so, is the interference with the right of the appellant to respect for family and private life posed by the decision under appeal proportionate to the legitimate end sought to be achieved?
This instruction gives guidance to caseworkers on consideration of applications made by family members who want to be reunited with a person in the UK who has been
- recognised as a refugee
Only pre-existing families are eligible for family reunion, i.e. the spouse and minor children who formed part of the family unit prior to the time the sponsor fled to seek asylum.
We may exceptionally allow other members of the family (e.g. elderly parents) to come to the UK if there are compelling, compassionate reasons.
The sponsor is not expected to meet the maintenance and accommodation requirements of the Immigration Rules.
Family reunion applications must be made at entry clearance posts overseas.
All concessions to this practice have been withdrawn.
25. A collection of factors have led me to the conclusion that the right of the appellant to respect for family and private life would not be subject to disproportionate interference if the appellant was removed to China. I now mention those factors and features of the evidence which have particularly influenced me.
26. First, it is to be borne in mind that the appellant is an able-bodied young man who would be returning to a country with whose traditions, customs and language he is familiar. He is not at risk of persecution from the Chinese authorities and he would be able to pick up the threads of his former life after he arrived in his country of origin.
27. Second, I find that the evidence did not establish that there would be an increased likelihood of Mr Miao taking his own life as a consequence of the decision under appeal being implemented. Certainly, there was at least one statement to such an effect. Dr Beary in his letter dated 1 April 2005 (page 95 of the appellant's bundle of documents), "It remains my view that if his son is deported there is significant risk that his father's mental state will seriously worsen and that the chances of him taking his own life is significantly increased." It was difficult to conceive of an evidential basis for such a prognosis. It really amounted to the opinion of Dr Beary and I regard his opinion as speculative. I accept that Mr Miao would remain a person who should fairly be regarded as a suicide risk he has on three occasions attempted to take his own life. It was difficult to conceive of the evidence which supported Dr Beary's claim that his mental condition would seriously worsen and that prospects of him taking his own life would correspondingly be significantly increased. Certainly, I am prepared to accept that Mr Miao would be saddened if the appellant was removed from the United Kingdom and perhaps exceptionally saddened. It was utterly a matter for conjecture whether such feelings on Mr Miao's part would give rise to a serious worsening of his mental condition or that the prospects of him taking his own life would be significantly increased.
28. Third, I find that Mr Miao would be afforded care after the appellant left the United Kingdom. I have made findings of fact as to Miss Mia's circumstances and I have characterised her relationship with Mr Miao as an ambivalent relationship. Nevertheless, I am not prepared to disregard the possibility that Miss Miao might undertake a degree of care of her father she has continued to visit him with her two year old son every two weeks. While I am not prepared to speculate as to her motives in so doing I should not regard Miss Miao as permanently estranged from her father. From her determination to continue with the visits and against the well-meant advice of her husband I draw the inference that there is at least a degree of concern for her father entertained by Miss Miao.
29. Fourth, I find that there would be an element of support from governmental agencies. An enquiry appeared to be made by a caseworker on behalf of the appellant (page 120 of the appellant's bundle of documents). Dr Yu has been Mr Miao's general practitioner since July 2001 (letter dated 23 May 2005 and submitted separately from the appellant's bundle at the hearing). He would appear to have a close knowledge of his patient. Dr Yu would appear to have contemplated the possibility that if the appellant and Mrs Miao departed from the United Kingdom that there would be a requirement of care from different agencies. He said in a letter dated 7 January 2005 (page 90 of the appellants bundle of documents), "Without the son and daughter-in-law around, the father would require several careworkers [sic} of different agencies." I draw the inference that Dr Yu was contemplating the possibility that care might not be provided by the appellant and Mrs Miao in the future but might be provided to Mr Miao from different agencies. In his skeleton argument and in submissions Mr Armstrong submitted that it would not be a practical exercise for Mr Miao to receive care from the local social services department. In his skeleton argument he stated, "Significant attempts to obtain care from the local social services department have been made (particularly through the charity the Chinese Information and Advice Centre which is also representing but to no avail)." In submissions he mentioned the difficulty which presented to one such as the appellant in procuring relevant evidence from hard-pressed government agencies. In the light of Dr Yu's remarks in particular I am not prepared to discount the possibility that after the appellant and Mr Miao departed from the United Kingdom that Mr Miao would receive some care.
30. Further, I should draw reasonable inferences from the evidence so as to reach a finding as to whether the appellants would encourage such a course. The appellant's love and affection for Mr Miao should not be doubted. He is, according to my findings of fact, together with Mrs Miao providing support to Mr Miao. The appellant is all to aware that he might be removed from the United Kingdom and he is concerned about his father's well-being should he be removed from the United Kingdom. Dr Yu would appear to be alert to the possibility that at some stage neither the appellant nor Mrs Miao will be able to provide care for Mr Miao and moreover to undertake effective steps to prevent him taking his own life or embarking upon steps preparatory to such a course. I am not prepared to discount the possibility that the appellant might encourage and liaise with Dr Yu so as to realise that prospect of assistance from the Social Services Department which Dr Yu was already contemplating according to those remarks which he made in his letter dated 7 January 2005. I am not prepared to find that Mr Miao would be left alone without help from any source let alone from the Social Services Department if the appellant and Mrs Miao were to be removed from the United Kingdom. In the light of the evidence to which I have referred in this paragraph of my determination I find that some care would be afforded to Mr Miao. Mr Armstrong submitted that it would be a particular difficulty that Mr Miao speaks Mandarin only and no English. He mentioned in his skeleton argument, "It is in any event doubtful whether someone could be found who he would accept, and who spoke the language." I should take judicial notice of the fact that a large expatriate Chinese population lives in London and the south-east. I am not prepared to find that there would not be a Mandarin-speaking carer or equivalent who might assist Mr Miao.
31. Fifth, and significantly I find that the appellant has a real option under the Immigration Rules to apply for entry clearance. I have borne in mind that guidance offered by the Court of Appeal in Huang and particularly in paragraphs 52, 53 and 56 of the judgment of Laws LJ. Accordingly, I should not regard the 1950 Convention as a means of circumventing the Immigration Rules. In his skeleton argument Mr Armstrong acknowledged that the starting point was indeed the Immigration Rules and he submitted that the appellant fell outside the Rules because he was not dependent on his father and Mr Armstrong referred to paragraph 317 of the Rules (paragraph 2 of the skeleton argument). I am not prepared to consider the prospects of the appellant succeeding in an application for entry clearance under paragraph 317 of the Rules. Nevertheless, if the appellant was to make such an application upon his return to China the Entry Clearance Officer would be required to consider the possible application of Article 8 of the 1950 Convention and those human rights issues which were amply ventilated by the written and oral evidence could be repeated. It is especially on account of the fact that there is a real entry clearance option available to the appellant that I am not prepared to regard the decision under appeal as disproportionate.
32. Finally, I have borne in mind the legitimate aim of the prevention of disorder as served by the maintenance of an effective immigration control. I have borne in mind that the maintenance of an effective immigration control is in the interest not only of the state but of the wider community. I have borne in mind that the legitimate aim itself is not easily overridden. I do not regard it as overridden in the present appeal. I dismiss the appeal under Article 8 of the 1950 Convention.
"It is my view that [the appellant] is an extremely important part of [the father's] support system. If his son is deported there is a significant risk that his father's mental state will worsen and that he will kill himself."
In updating reports written in April and May 2005 Dr Beary restated this view. In the latter he went on to say that since the father speaks no English
"I can see no prospect of the social and health services providing long term care and support likely to meet his mental health needs."
"For reasons which I recite later in this determination I am not prepared to conclude that the separation would be of a substantial duration."
Although the judge does not go on to say so, it is implicit in this that the Home Secretary, albeit insisting on removal and opposing the appeal on its merits, has formed no view on any family reunion application which may be duly made abroad. But the first and principal ground of appeal is that it was for the immigration judge himself to consider the policy in the context of art. 8 and to reach his decision on the proportionality of removal in the light of it. The argument was, and is, that since the appellant came within the policy in every respect save his present location, it would be an unconscionable disruption of his family life to send him back to China simply so that he could apply from the correct place, when the very interruption of care might be fatal. Right or wrong, it is submitted that the immigration judge nowhere dealt with this argument.
Note 1 See inter alia De Freitas v Ministry of Agriculture  1 AC 69, PC; Daly v Home Secretary  2 AC 532, HL. [Back] Note 2 In Senanayake v Home Secretary  EWCA Civ 1530, §14, I entertained the possibility that the material part of the FRP simply amplified Rule 317. In relation to the facts of that case it was arguably so, but as a general proposition about the FRP it does not stand scrutiny. The assenting judgment of Chadwick LJ on the meaning of compelling, compassionate circumstances stands independently of this. [Back]
Note 1 See inter alia De Freitas v Ministry of Agriculture  1 AC 69, PC; Daly v Home Secretary  2 AC 532, HL. [Back]
Note 2 In Senanayake v Home Secretary  EWCA Civ 1530, §14, I entertained the possibility that the material part of the FRP simply amplified Rule 317. In relation to the facts of that case it was arguably so, but as a general proposition about the FRP it does not stand scrutiny. The assenting judgment of Chadwick LJ on the meaning of compelling, compassionate circumstances stands independently of this. [Back]