England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/12935/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th October 2009

Lord Justice Sedley:

1. Ms Jegarajah, with her customary persuasiveness, appears this morning for an appellant who is a Sri Lankan national. With his wife he arrived here at the end of August 2007. He claimed asylum, with his wife as a dependant, but the asylum claim has failed. It is material that there has been no undue delay in the processing of that claim. The failure of the claim was followed by an appeal which was heard in December 2008 and went against the appellants. A more embarrassing delay has been the lapse of time from then until now. It has however resulted in July this year in a refusal by Longmore LJ of permission to appeal on sight of the papers. I have to say that upon renewal and upon my reading of the papers I was strongly disposed to take the same course.
2. The reason I am not going to do so is this. Although the designated Immigration Judge was sceptical of the dependability of much of the evidence given in court by the appellant, his decision accepted and established at least this much: that the appellant couple when they came here joined their daughter, who had been effectively abandoned by her husband, together with her children. The wife as grandmother has helped to fill that gap by becoming an integral part of the family unit and taking a considerable part of the burden off the daughter's shoulders.
3. At paragraph 41, the Immigration Judge said:

"The evidence is that the Appellant and especially his wife take an active part in their daughter's household and in caring for their grandchildren. I accept that they are able to give each other mutual support and their lives are fraught in that the Appellant's daughter states she is separated from her husband and is a single parent, her father is not in the best of health and the immigration status of her parents is uncertain. Beyond that I can place little weight on their evidence."

At paragraph 49 the Immigration Judge made it clear that he was taking into account all the elements of the family unit which had been constituted in the period of the asylum application, but he rejected the claim at paragraph 50 on the ground that more than mere hardship or mere difficulty must be shown and that there must be sufficiently serious interference with family life for there to be a breach.

4. I am not convinced that that was the right way to approach it. It seems to me, and it seemed I think at other points of the determination to the Immigration Judge, that the real question underlying the determination was whether, giving full weight to the jurisprudence which preceded and has followed the Beoku-Betts case in the House of Lords ([2008] UKHL 40), it was really possible to allow a successful Article 8 claim to be erected entirely on the basis of a family life which has only come into being because an asylum claim which turned out to be ill-founded had been made and processed. That seems to me to be a question of principle which if it is answered in the sense in which the Immigration Judge answered it, would be an end of this case, but if answered in the sense in which Ms Jegarajah wants it to be answered, might open up the question whether this was a sufficiently reasoned conclusion.
5. There are difficult borderline issues in this class of case. If, for example, the processing of the asylum claim was done not merely in the relatively brief time that this one took but for no good reason dragged on for years, it might be much more difficult for the Home Office to say that reliance cannot be placed on the passage of time in establishing family life. I can see also that there may be cases in which, even though the claims have been processed expeditiously, some unexpected event of a possibly catastrophic nature, for example the orphaning of grandchildren, has led to the constitution of a family involving the appellants which could not have been foreseen but which is now real and has got to be faced in dealing with the Article 8 issue.
6. But this is neither of those two cases. It is in a sense a paradigm case -- and this is why I am giving permission to appeal -- in which the genuineness of the family unit that has developed is not in doubt but the basis of it has been simply the relatively brief time that has elapsed in the course of making an unsustainable asylum claim. I do not think that this claim necessarily has a better than even chance of success, but I do think that the question of principle which it throws up may well be of assistance in developing the jurisprudence of Article 8 post-Beoku-Betts, and for that reason deserves the attention of this court.

Order: Application granted.