COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/22972/2003]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LLOYD
| MT (ZIMBABWE)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MR N SHELDON (instructed by Treasury Solicitors) appeared on behalf of the Defendant.
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Lord Justice Buxton:
"It is arguable that the adjudicator's article 8 decision was legally sound and factually tenable and so should have been upheld by the AIT. While such claims are never easy, the finding of family life was arguably sound, and the finding that removal would be disproportionate - a mixed question of law and fact - not demonstrably erroneous or intrinsically perverse."
"… I am not satisfied that the Appellant faces a well founded fear of persecution for reasoned political opinion. The option of internal flight is open to her should she feel she has concerns about return to the same locality. I accept that as a single young woman she may encounter difficulties but there does appear to be the opportunity with Mr G's sister or brother. I do not consider that it would be unduly harsh to expect her to live elsewhere in Zimbabwe."
"The Appellant has lived with her cousin since 1996 when she was fourteen years old. Although she has other brothers and sisters she has now lost contact with them and has not seen them since 2000. Given that she has lived with the family for eight years I am satisfied that she has established a family life with them.
"I have considered whether this family life is one which can fall within the ambit of Article 8 given that the Appellant is now an adult and the relationship is that of cousins. While it is generally the case that relationships between adult relatives would not necessarily fall within the ambit of Article 8 it is a question of fact in each case whether there are strong enough family ties and more than the normal emotional bonds. In considering this I have taken account of the fact the Appellant has lived with her cousin since her mother dies in 1996when she was fourteen years old. She sees her cousin as a father figure and she has been part of the lives of his children since they were babies. The relationship between the Appellant and her cousin is more akin to father and daughter rather than cousins. The Appellant and her cousin have given evidence that in their culture the girl remains in the family home until she is married. I am satisfied that there exist strong family ties between the Appellant and her cousin and his family. I find that she is more than normally emotionally dependent on him and his family as they are in fact the only family she now has and because of the experiences in Zimbabwe. I am satisfied that the relationship which exists between them is sufficiently strong to engage Article 8.
"Therefore if she were returned to Zimbabwe this family life would be interfered with but such interference is set out in the law and is in pursuance of the legitimate aim of maintaining fair and firm immigration control.
"In considering whether such interference is proportionate I have taken account of the following factors. The Appellant has lived with her cousin for eight years and is an established member of his family. If she were returned to Zimbabwe there would be an insurmountable obstacle to her continuing this family life there. Mr G has been granted refugee status on the basis of the risk of persecution; he is not able at this time to return there with the Appellant and the rest of his family.
"I have also considered that it may be open to the Appellant to return to Zimbabwe and to maintain her contact through visits, telephone calls and correspondence but given the nature of the family life she has with her cousin, and his family I do not find that this would enable her to maintain this family life.
"I have taken account of the legitimate aim of immigration control and the fact that generally this would take precedence but I consider in the case that the balance just falls in favour of the Appellant. I find that her family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe."
"The appellant is now 25 years of age. When she arrived in the UK she was 22 years. She came to the UK with her cousin Mr G. Both the appellant and her cousin have submitted witness statements and other evidence in support of the claim. It appears that the appellant has lived with her cousin since 1996 when she was 14 years old. She appears to have lost contact with her other brothers and sisters. The adjudicator was satisfied that the appellant had established a family life with her cousin, his wife and her children.
"It appears the appellant treats her cousin as a father figure. She has helped him and his wife to raise their children. She apparently relies on Mr G for emotional support, maintenance and accommodation. We accept as previous tribunals have accepted ' that Mr G has become a type of stepfather to the appellant and assumed the role of father to her.
"The adjudicator considered that a return to Zimbabwe would interfere with the appellant's family life with her cousin and family. The cousin has been granted refugee status on the basis of risk of persecution. He is not able to return with the appellant and the rest of his family to Zimbabwe. The adjudicator concluded that visits, telephone calls and correspondence with her cousin would not enable her to maintain family life. In taking account of immigration control, the adjudicator found that the appellant's "family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe".
"The respondent argued, when applying for permission to appeal to the IAT that the adjudicator had erred in law in her approach to the appellant's article 8 rights. The adjudicator found that the appellant "is more than normally emotionally dependent on (her cousin) and his family as they are in fact the only family she now has and because of the experience in Zimbabwe". In his application for permission to appeal, the respondent argued that the adjudicator had failed to give reasons as to how this relationship is "beyond what would normally be accepted between adult family members and an adult child and parent". This is the test which needs to be met in accordance with N (Sri Lanka)  UKAIT 0069. The adjudicator gave no adequate reasons for this finding. We can see nothing in the evidence which takes the admittedly close relationship between the appellant and her cousin's family beyond the normal family ties between an adult child and her family. In our judgment, the appellant has failed to establish that her right to "family life" is engaged.
"There is no question and it has not been argued that the appellant is entitled to remain in this country under any provision of the Immigration Rules. She of course has the right to respect for her private life. But to interfere with that right as would happen if she were to return to Zimbabwe would be proportional as she failed to meet the Immigration Rules unless in some way her circumstances might be described as exceptional.
"The test applying in these circumstances was made clear in Huang I  EWCA Civ 105. The appellant's circumstances would have to be truly exceptional to find a reason why the Immigration Rules should be overridden.
"Whether we restrict ourselves to the appellant's private life or assume she has existing family life, in the Tribunal's view, this is not such a case. The appellant does have relations in Zimbabwe. She could remain in contact with her family here by correspondence, letters and telephone. Subject to satisfying the grounds for entry clearance as a visitor she could visit the UK to see them. We consider the adjudicator made an error of law in reaching the conclusion she did. The evidence does not show a dependency beyond the normal emotional ties in a family between an adult child and his or her parent or guardian."
"Beyond what would normally be accepted between adult family members in an adult child and parent".
"Athough this will depend on the circumstance of each particular case, the Commission has already considered that the protection of Article 8 (Art. 8) did not cover links between adult brothers who had been living apart for a long period of time and who were not dependant on each other. Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties."
"Therefore if she were returned to Zimbabwe this family life would be interfered with. Such interference is set out in the law and is in pursuance of the legitimate aim of maintaining fair and firm immigration control."
She then set out the factors already indicated that influenced her judgement and concluded at paragraph 50:
"I have taken account of the legitimate aim of immigration control and the fact that generally this would take precedence but I consider in this case the balance just falls in favour of the Appellant. I find that her family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe."
"In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances."
"The answering of [that question] must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal, the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal."
"Legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
Lord Bingham continued in paragraph 20 of Razgar,:
"In the present case the Court of Appeal had no doubt…that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices to family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, paragraph 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he is not purporting to lay down a legal test."
"In normal circumstances interference with family life would be justified by the requirements of immigration control. However, it is recognised that a different approach may be justified in "a small minority of exceptional cases identifiable only on a case by case basis" (per Lord Bingham, Razgar). The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact, and normally raises no issue of law."
Later in his judgment, at paragraph 40 having, as I have said, pointed out that normally the issue will not be one of law, Carnwath LJ said this:
"Factual judgments of this kind are often not easy, but they are not made easier or better by excessively legal or linguistic analysis. It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. [I omit some words] The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system, or an order for reconsideration under the new. Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of a specialist tribunal should be respected."
"The evidence does not show a dependency beyond the normal emotional ties in a family between an adult child and his or her parent or guardian. The evidence did show that and the adjudicator found that there was a dependency beyond the normal emotional ties, and was entitled to do so. That, was sufficient in this case to uphold her determination, granted the respect that has to be accorded to the view of the immigration appellate authority, in this case the first appellate authority, the adjudicator, and granted as I have endeavoured to explain that the matter cannot be regulated by strict legal rules".
Lord Justice Waller:
Lord Justice Lloyd:
Order: Appeal allowed.