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 AND IMMIGRATION TRIBUNAL
(IMMIGRATION JUDGE COHEN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th November 2009

Lord Justice Pill:

1. This is an appeal against a decision of the Asylum and Immigration Tribunal dated 13 January 2009. The tribunal, Immigration Judge Cohen, on a reconsideration dismissed the appellant's appeal against the decision of the Secretary of State, dated 26 July 2007, to refuse the appellant's application for leave to remain in the United Kingdom on human rights grounds.
2. The appellant, a Nigerian national, entered the United Kingdom in May 1997 when almost 16 years old. He made an application to remain as an over age dependent on his mother in 2005. That was refused in 2007 and an appeal was dismissed.
3. The present appeal, brought with permission of Sedley LJ following oral hearing, is on the basis that a return to Nigeria would, contrary to the tribunal's findings, violate the appellant's rights under Article 8 of the Convention.
4. The appellant's mother had arrived in the United Kingdom in 1987 when the appellant was six years' old: that is, about ten years before him. He is now 26 years' old. The tribunal accepted that the appellant's mother, younger brother and uncle are in the United Kingdom, as are members of the extended family. The appellant believed that his brother had come to the United Kingdom in 2001. Their father has died since 1997.
5. The appellant gave evidence at the hearing before the tribunal. His mother, brother, uncle and a friend also gave evidence. The tribunal summarised his evidence as to family life at paragraphs 9 and 11:

"He states that he is living with his mother and younger brother and his role was like a father figure. He has lived with his mother since 1997. His brother is 22 years old and studying at Kingston University [I interpose that he lives with his mother and the appellant]. He is a British citizen. His mother does two jobs as a care assistant in Lewisham and University College Hospital. She has high blood pressure. He looks after the home and assists his mother with functions such as arranging appointments and form filling. He is concerned that his removal will have a detrimental effect on his mother's health. He has extended family members in the UK including his uncle and aunt. His family has a close bond in the UK."

Statements before the tribunal, as was noted in the determination from various family members, referred to the nature of the relationship, particularly between the appellant and his mother and brother.

6. The tribunal referred to the appellant's mother's evidence:

"She was heavily dependent on the appellant. They were a close family unit. She would miss him dreadfully if he returned. He sorts out the house and does many tasks for her. […] Her younger son is very close to the appellant"

7. The tribunal noted discrepancies between the evidence of witnesses, which were found to damage the credibility of the appeal as a whole:

"I find that the appellant and sponsor have not told the truth concerning family members remaining in Nigeria and find that there are family members including cousins and find that the appellant would have assistance from these family members upon return."

8. The judge's conclusion, in relation to whether the limb of Article 8 involving family life was engaged, is at paragraph 24. Article 8(1) of the Convention provides:

"Everyone has the right to respect for his private and family life, his home and his correspondence [...]"

The judge said:

"I accept that the appellant is in the UK and has been here since 1997 [it is necessary to add certain words which are clearly simply missing from the report we have] albeit without any status throughout that period. The appellant has his mother, younger brother, uncle and extended family members in the UK. I do not accept that the appellant's relationship with various family members is exceptional or beyond the norm. The appellant is an adult. I do not accept that it constitutes family life. The appellant's evidence of undertaking housekeeping tasks for his mother and making appointments on her behalf is in no way exceptional or beyond the norm. The appellant has lived with his family members, studied and made friends in the UK. I am prepared to accept that the appellant has a private life in the UK."

The tribunal then goes on to consider -- a subject to which I shall return -- the interference with his private life. In relation to family life, paragraph 26, while dealing mainly with the Article 8(2) issue in relation to private life, it was stated:

"The appellant's brother is at university. […] It is claimed that the appellant's mother suffers from high blood pressure but this does not prevent her from working in two separate jobs and I do not find that this health condition advances the appellant's appeal in any way. […] There are no children involved in this case. I have not found a family life even [to] exist between the appellant and his family members. It is not exceptional or beyond the norm."

9. When refusing permission to appeal a Senior Immigration Judge stated, with respect to family life in Kugathas v SSHD [2003] INLR 170, that the court held that, in order to establish family life between adults, it is necessary to show that there is a real, committed or effective rapport or relationship between family members and the normal emotional ties between mother and adult son without more are not enough. On the basis of the evidence before him, the immigration judge was entitled to find, it was stated, that there was no family life either between the appellant and his mother or his adult younger brother.
10. When refusing permission to appeal on a consideration of the papers, Elias LJ took the same position:

"The Immigration Judge was entitled to find that family life was not engaged."

11. When granting leave, Sedley LJ expressed concern about the finding that Article 8(1) was not engaged with respect to family life. He stated at paragraph 5:

"It seems to me in the light of these facts, none of which seem to be doubted by the immigration judge, that the finding of the application has no family life here is arguably perverse"

And at paragraph 7:

"For all those reasons, but principally because of the questionable finding on the existence of family life, I propose to grant permission to appeal."

The other aspects mentioned by Sedley LJ are what he regarded in the determination as:

"…arguably indications of greater hostility to the applicant than the evidence might be thought to have justified."

I will return to that aspect of the case later.

12. In submitting that the finding of the tribunal was perverse, Mr Ogunbiyi, on behalf of the appellant, submits that, on the evidence, he, the appellant, his mother and younger brother were living in one household as one unit. There was an emotional dependency between them -- though he accepts not at present a financial one -- that constitutes, he submits, family life. He seeks to rely on the decision of the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39.
13. I do not consider the case to be of any assistance to the appellant on the issues of this case. It was common ground in Beoku-Betts that the family constituted a close-knit unit and his mother relied on him (that is, the party involved) for emotional support. The issue in that case was whether one had to consider the effect on members of the family other than the appellant in considering the interference with his family life. It was held by Lord Brown of Eaton-Under-Heywood, giving a speech with which the other members of the house agreed, that it was necessary to consider the family unit as a whole, and, if the proposed removal would be disproportionate in that context, each affected family member was to be regarded as a victim. Lord Brown stated at paragraph 43 that "There is only family life".
14. That determination does not assist as to whether family life exists for the purpose of Article 8(1). However, I see force in counsel's submissions. If the matter were free from authority I would see considerable force in it. The question what constitutes family life has, however, been considered in this court in other cases. I say at once that these can readily be distinguishable on their facts, but statements are made as to the approach to be applied.
15. In Kugathas v SSHD, -- that is the case to which the Senior Immigration Judge refusing leave to appeal referred -- reference was made to the European Commission for Human Rights decision in S v UK [1984] 40 DR 196. The Commission stated at page 198:

"Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."

At paragraph 14 of his judgment, Sedley LJ stated:

"This, while it is not black letter law, sets out what I would accept as a proper approach."

16. Sedley LJ referred at paragraph 16 to the decision of the European Court of Human Rights in Abdulaziz Cabales and Balkandali v The UK (1985) 7 EHRR 471, paragraph 63, where the phrase "committed relationship" was used. In Beldjoudi v France [1992] 14 EHRR at 801, a decision of the Commission was upheld by the Court, at paragraph 55 the phrase "real and effective family ties" was used.
17. The facts in Kugathas were stated in the judgment of Simon Brown LJ at paragraph 31:

"The first real question arising in the present case is whether or not there has existed during the three years the appellant has been in this country any family life within the meaning of Article 8, such that his proposed removal now to Sri Lanka could reasonably be said to interfere with respect for it. The appellant is now in his 30s. It may perhaps be that during the 15 years or so he spent in Germany before coming to this country in 1999, he was then enjoying what could properly be described as family life, or at any rate private life, through his relationship and contact there with his widowed mother and his brother and sister. But even if he did then enjoy such private or family life (and I reach no conclusion one way or the other as to that) there was on any view substantial interference with it when, for reasons good or ill, the appellant left Germany and came to this country in 1999. The only contact he has enjoyed with his family since then has been (a) a single three-week visit made to him here in August 2000 by his sister, her husband and their young daughter and (b) periodic phone calls between the appellant and his relations in Germany. Nothing either in the domestic or the Strasbourg jurisprudence, to my mind, supports the view that in these circumstances family life can properly be said to have been enjoyed for these last three years."

18. It was on that factual basis that Sedley LJ made the comments to which I have referred and they also form the background to Arden LJ's judgment at paragraph 25:

"…because there is no consumption of family life, in my judgment a family life is not established between an adult child with his surviving parent or other siblings unless something more exists than normal emotional ties. See S v The United Kingdom [1984] 40 DR 196 and Abdulaziz. Such ties might exist if the appellant were dependent on his family or vice versa. It is not however essential that the members of the family should be in the same country."

19. The researches of Arden LJ during the short adjournment have revealed a much more recent Strasbourg decision (Application no. 51268/99). It was a decision as to the admissibility of an application in which several issues were involved, but in finding the application inadmissible the fourth section of the court sitting as a chamber on 26 March 2002 stated on the facts in that case, which are very different from the present one: "there is no element of dependency between the applicant and his children". It is certainly not crucial or even central to my decision, but it is noteworthy that the word "dependency" which has been used in earlier cases has been carried forward.
20. In JB (India) & Others v The Entry Clearance Officer [2009] EWCA Civ 234 Sullivan LJ, giving a judgment with which Mummery LJ and Lawrence Collins LJ agreed, referred to Kugathas in these terms:

"It is authority for the proposition authority that "further elements of dependency involving more than the normal emotional ties" are required if the relationship between the adult child and his parents is to acquire protection under Article 8: see paragraphs 14 to 19 of the judgment of Sedley LJ and paragraph 25 of the judgment of Arden LJ. In my judgment there was no error in the Tribunal's approach to this question on reconsideration."

21. Sullivan LJ's conclusion is at paragraph 21:

"21. The "historic injustice" has no bearing on the question whether, in 2007, these three adult appellants and their mother were not simply members of the same family but were enjoying what could sensibly be described as "family life" for the purposes of Article 8. There is no reason to doubt Immigration Judge Parker's conclusion that in 1992, when the appellants were aged 19, 17 and 10, and were living with their mother in India they were dependent upon her at that time even though the eldest appellant was just an adult. But, as with all families, circumstances changed as the children grew older. By 2007, when the relevant application for entry clearance was made, the appellants were 33, 31 and 24 years old. They had been separated from their mother since 2001 and, as the tribunal said on reconsideration, it was clear that "the appellants did not need their mother to be with them.

22. The tribunal's conclusion on reconsideration that there was no interference with family life for the purposes of Article 8(1) was, in my judgment, plainly correct."

22. Each of those cases, as I have said, is readily distinguishable from the present one on the facts. The facts in the present case, as accepted by the tribunal, are of a mother who has been living for many years now with two young adult sons in the same household. They have been, and are, helping and supporting each other in the way members of a family living together usually do. They are not financially dependent on each other but there are undoubtedly emotional ties. Some of the expressions to which reference has been made in the Strasbourg jurisprudence, "committed relationship", and "real and effective family ties", would appear to cover the present situation. However, I accept that the Strasbourg jurisdiction does not all point in that direction. Moreover, I regard myself as bound by the decisions of this court to which I referred, in particular the approval in the case of Kugathas of the Commission's decision in S and the approach to that decision of Sedley LJ. The test is that applied by the tribunal, as appears from the expressions in the determination. The behaviour is "no way exceptional or beyond the norm" (at paragraph 24), an expression repeated in paragraph 26.
23. I follow that a distinction between underage children and adult children may for many purposes properly be drawn. It is, however, common knowledge that many children, both in this jurisdiction and possibly in other member states, do remain in family homes beyond the age of majority and at least until they are well into their twenties. Having regard to the ordinary use of words, I find it difficult to say that family life determines, subject to exceptional circumstances, when the child or children attain their majority.
24. I take the opportunity to express that reservation, but, as I have said, I regard myself as bound to hold that, on the facts of this case, the tribunal was entitled to find, as it did, that the family limb of Article 8(1) was not engaged. That was a permissible finding on the test indicated by the authorities.
25. Mr Ogunbiyi's second submission is in relation to Article 8(2) and whether, on the basis that private life limb of Article 8 was to be considered, it was proportionate to require the removal of the appellant from the jurisdiction. It does not appear to me that Sedley LJ has given permission to appeal on this ground but the court has been prepared to hear arguments on it and to deal with it.
26. The findings of the tribunal are at paragraph 26. This is a long and, with respect, confusing paragraph; confusing first in that it mixes a consideration of Article 8(1) issues with Article 8(2) issues, and also in the difficulty in distinguishing between the private life and family life aspects of the findings. I have already referred to several of the findings in relation to the issues already considered.
27. Counsel's submissions about the paragraph begin with criticism of gratuitous comments made by the tribunal which on the evidence, it is submitted, are difficult to justify. Sedley LJ referred to this issue. It is stated at paragraph 25, "the appellant was aware that he was subject to removal at any time". Paragraph 26:

"I find that the appellant and his witnesses have sought to enhance and bolster the evidence in support of this appeal."

Later:

"I find that he has had no regard to the immigration laws of the UK. I find the appellant to be lacking in scruples or credibility."

28. Mr Ogunbiyi submits that the overall findings must be considered in the light of remarks which, in his submission, were not justified. To some extent I see force in the submissions. The tribunal was entitled to say that the appellant and his witnesses had sought to bolster the case, but it was too strong a comment, on the tribunal's own findings, to go on to say that the appellant has had no regard for the immigration laws or laws of the UK.
29. The tribunal has made clear and justifiable findings of fact adverse to the appellant, but I agree with counsel that the matter is put too strongly by that statement. It is not clear whether, when he entered the United Kingdom at the age of 15, the appellant knew that his entry was unlawful, or indeed whether it was in fact unlawful; and, apart from the lapse of time and the obvious intelligence of the appellant and his family, there is no clear evidence of any disregard for the immigration laws or the laws of the United Kingdom. However, the appellant was a long-term overstayer, and it is difficult to conclude other than that he was aware of the position in which he stood. He himself applied for leave to remain in 2005.
30. I read paragraph 26 with those over-vigorous comments in mind. The tribunal stated, and I quote those passages which appear to me to be relevant under the present head:

"The appellant is in good health. […] I have found that the appellant has family members remaining in Nigeria. He is an adult and in good health. I find that the appellant may return to Nigeria where he may work and where his family will be able to offer him support. He is a 26 year old man who has successfully passed all heads of his accountancy exams."

31. The tribunal concluded:

"I find that the appellant's removal to Nigeria would not breach his Article 8 right to a family or private life. In coming to this conclusion I have regard to the determination of the Tribunal in Huang. The appellant's circumstances are not sufficiently serious. I do not find the appellant's case is one of the small minority of cases that the House of Lords anticipated would be allowed under Article 8. The appellant has not substantiated his claim under Article 8 of the ECHR."

32. What saves the paragraph, in my judgment, are the clear findings of fact which emerge from it. They were findings of fact, notwithstanding the reservations I have expressed, the tribunal was entitled to make. It may be that there is some overstatement in the closeness to him of the remaining relations in Nigeria, but a finding that the appellant could manage there having regard to his age; health and qualifications, is totally unsurprising. The over-vigorous comments do not in my judgment affect, so as to make them untenable, the findings of fact the tribunal made. On those findings, the tribunal was clearly entitled, in my judgment, to reach the conclusion it did.
33. I would also be prepared to hold, if I am wrong on the first issue and family life was engaged, that the tribunal in paragraph 26 was dealing with the effect on family life as well as that on private life. There are references in the paragraph which can only apply to family life, and the tribunal stated that the removal would not "breach his Article 8 right to a family or private life". As to family life, the conclusions were ones which the tribunal was also entitled to reach, and on those findings, and having regard to the general approach of the tribunal to this case, it is in my view inevitable that the tribunal would, had it found family life engaged, have reached the same conclusion on Article 8(2) as it did for private life.
34. For the reasons I have given, I would dismiss this appeal.

Lady Justice Arden:

35. I agree. I am obviously mindful of the effect that the decision of this court would have on the appellant's mother, particularly given the sacrifices she has made to bring the appellant up and on the appellant's younger brother. However, this court has to apply the law which is binding on it. The appellant is now well over the age of majority. Whether family life exists for the purposes of Article 8 as between a parent and an adult child must depend on the facts. I do not think it necessarily automatically determines on obtaining majority, but I am satisfied that the appellant failed to establish family life before the immigration judge and that there is no basis on which this court can interfere with that decision. I therefore, notwithstanding the defects in the decision referred to by Pill LJ, agree with the order that he proposes.

Lord Justice Etherton:

36. I also agree.
37. On the basis Kugathas, particularly paragraphs [14] and [16] in the judgment of Sedley LJ and paragraph [25] in the judgment of Arden LJ, the Judge was correct to conclude that there was no family life engagement of Article 8 of the Convention.
38. So far as concerns the issue of proportionality in relation to Article 8(2) and the appellant's private life, I do not consider that the Judge was entitled to conclude, if he did conclude, that the appellant was always aware that he was subject to removal at any time. Plainly he did become aware at some stage, but there is no evidence that when he arrived in this country aged 15 he was aware of any unlawful status. I also find it difficult to see why the Judge said in paragraph [25] of his judgment that the appellant had not told the truth concerning family members in Nigeria bearing in mind the Judge's acceptance of the appellant's evidence, in preference to that of his mother, as to family members of whom he had knowledge in the past. Similarly, I find it difficult to understand the basis for the Judge's view in paragraph [26] of his judgment that the appellant had no regard for the immigration laws or the laws generally of the United Kingdom, and that the appellant was lacking in scruples or credibility. Notwithstanding that I find that in all those respects there was no proper basis for the Judge's comments, I agree with Pill LJ that the findings which he was entitled to make and did make, set out in paragraph [26] of the judgment, are sufficient to justify his conclusion on proportionality under Article 8(2).

Order: Appeal dismissed