COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT Nos: OA/35641, 35665, 35669/2007]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWRENCE COLLINS
LORD JUSTICE SULLIVAN
| JB (INDIA) & ORS
|- and -
ENTRY CLEARANCE OFFICER
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Mr J Beer (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"Made a procedural error of law amounting to an error of law by relying extensively on a piece of caselaw [NH] without giving the parties the opportunity to make submissions on it;
Erred in his assessment of family life in that he had made contradictory remarks regarding dependency and failed to have regard to the case of Kugathas  EWCA Civ 31, the key case law on this issue "
"For the reasons given in the grounds for seeking a review it may be arguable that the Immigration Judge erred in allowing the appeal under Article 8, particularly in finding the instant case to be on all fours with [NH] and in not inviting submissions from the parties on the applicability of that case."
"Our starting point must be to ask whether family life subsists between the appellants and the sponsor for the purposes of Article 8 and, if so, whether the decision under appeal constitutes an interference with it (or a denial of the appellants' right to respect for their family life). It is apparent at once that there is a factual difference between the circumstances of Halai's case and those of the present case. Navin Halai had been living with both his parents in India, and his mother only came to the United Kingdom when the law changed in April 2003, giving her the opportunity to register as a British citizen. She then returned to India, to support the applications of her husband and youngest son for entry clearance as dependants. At that time Navin Halai was just over 18. He was in full-time education, and still fully dependent on his parents. The appellants in the instant case, however, were aged respectively 33, 31 and 24 when they applied for entry clearance, and were not "mainly dependent financially" on the sponsor.
27. The evidence before us does show, we acknowledge, that the sponsor has been sending quite a lot of money to the appellants. For the last quarter of 2003, and for almost all of 2004, the sponsor sent postal orders each month amounting to at least £100. There are no documents relating to 2005, but in 2006 the sponsor sent a cheque for £800 and a postal order for £50. In 2007, cheques for over £2,000 were sent. Nevertheless, as found by Miss Dawson when determining the earlier appeal in 2005 [against the refusal of the appellants' applications in February 2004 for entry clearance to settle in the United Kingdom], both Jagruti and Gautam have been working, and earning between them more than what the sponsor was earning when she lived in India with the appellants and had to maintain them all. Immigration Judge Parker was rightly sceptical about what the appellants told the ECO at their most recent interview, about their difficulty in finding work. Jagruti contradicted her earlier interview by insisting that she had never worked at all. It is clear that by this stage the appellants realised they needed to play down their ability to maintain themselves.
28. Another difference between the instant case and Halai is that he and the sponsor left India at a time [in July 2001] when she could not have expected to be able to register as a British citizen. Indeed, two years were to pass before she could. Having got leave to enter the United Kingdom as a visitor, the sponsor tells us that she made no attempt to regularise her stay until it became possible to register for citizenship after 30 April 2003. She was not working during that period, and so was unable to provide the remittances which she began sending after she commenced work with D.R. Garments in August 2003. For two years, then, the sponsor was in Leicester and the appellants had to make shift for themselves. Gautam, the sponsor tells us, looked after his sisters, while the landlord (who may be a relative of the sponsor's -- they share the name Odedra) kept an eye on all of them. What is clear is that the appellants did not need their mother to be with them.
29. It is significant, we feel, that the sponsor has never been back in the seven years since she left India. She has managed to save a considerable amount of money. By the date of the hearing before Immigration Judge Parker, she had £8,400 in her bank account. We note from a more recent bank statement that the sponsor has transferred £3,600 to a "Tax Haven ISA". That is no doubt a sensible investment, but it suggests that the sponsor has more important priorities than visiting her children in India. The Court of Appeal in Kugathas cited with approval a passage from the Strasbourg jurisprudence: '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.' We do not think that the family life between the sponsor here, who could have paid a visit to India at some time, at least within the last four years, but has not, and the appellants, who do receive generous remittances from the sponsor, but who are capable of maintaining themselves and have certainly done so in the past, evinces that unusual degree of dependency which the Strasbourg jurisprudence requires in order for family life to subsist in Article 8 terms between a parent and her adult children."
"In fine, we find that the instant case is readily distinguishable from Halai's case, which is not authoritative for any general proposition that the children of former British Overseas citizens must be admitted for settlement if they retain close ties with their parents. Article 8 of the ECHR can do many things, but it is not a vehicle for the righting of historical wrongs. That is for the politicians, and not for the judges. The historical wrong done to [British overseas citizens] is, of course, part of the context against which the proportionality of an immigration decision is to be assessed, as was done in Halai. But first it must be shown that there is family life for the purposes of Article 8, and that the interference with it (or lack of respect for it) is sufficiently serious to engage the potential operation of Article 8. Those hurdles have not been passed in the instant case, and so 'the ultimate question', as Lord Bingham has called it, of proportionality has not been reached."
"Miss Laing [counsel for the Secretary of State] submits that the adjudicator erred in law in regarding art. 8(1) as engaged at all. But her principal point, that refusal of family reunion is unable in principle to constitute a breach of art. 8(1), is answered by the decision of the European Court of Human Rights in [Sen]. The Dutch government had in fact conceded the existence of family life between a couple and their child who had never lived with both of them. But the court itself added:
'The Court reiterates in this regard that a child born of a marital union is ipso jure part of that relationship; hence from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond amounting to family life which subsequent events cannot break save in exceptional circumstances'".
"The first question relating to entry clearance is whether the appellant's private or family life is engaged at all. This was very clearly demonstrated that it is at paragraph 19 of that case. [NH] Referring to the case of [Sen v The Netherlands] it stated a child born in a marital union is ipso jure from part of that relationship hence from the moment of the child's birth there exists between him/her and the parents a bond amounting to family life which subsequently events cannot break save in exceptional circumstances."
"In this case there are three appellants. The sponsor moved to this country with the expectation of the family joining them and has made repeated applications to join them in this country. I would therefore find that there is family life and it would be interfered with by the decision. The decision is in accordance with the law in maintaining immigration control and the real issue was it proportionate."
"20. It is worth noting that in 1992 [when the sponsor first made an application under the special voucher scheme then in force] the appellants in this case were 17, 10 and 19. There is no evidence to the contrary that they were anything other than dependent on their mother at this time. I therefore find as a fact this is the case. In 2003 when she received British Citizenship her children would have been aged 28, 21 and 30. It is clear that if the appellant's mother had been granted the special voucher scheme in 1993 that her children would have been entitled to come to this country as they were under 25 at the time of the application. I therefore find as a fact this is the case. These facts are not in dispute and they are the basis of the appellants' case.
21. The appellants' mother has shown that she sends a considerable amount of money to the appellants in this case it is clear at the date of the decision she was contributing a considerable sum to their maintenance. I have expressed doubts whether on the evidence this amounts to being mainly dependent on their mother, but they are clearly dependent on their mother to some extent and I have no doubt that strong family ties exist between the mother and the appellants. I therefore find as a fact this is the case. She telephones them weekly. They have made three to four applications which indicates to me the strong nature of the family life between them. They are not married and leading independent lives. I therefore find as a fact this is the case."
"On the question whether family life between the mother and daughters existed at all for the purpose of Article 8 she [the immigration judge] held as follows:
'19. I first considered whether there was a family life between the sponsor and the appellants. I accept that a family life within the meaning of Article 8 does not normally exist between an adult child and its parent however on the facts of this appeal I find after considering the oral evidence of the sponsor that the bonds between the parties are very strong. I find that there is evidence of a relationship of emotional dependency which exceeds the natural bonds of affection which exist between a parent and child of any age. Having determined that there is a family life in existence I have considered whether the consequent interference in that family life caused by the refusal of entry clearance is proportionate and in accordance with the law.'"
"first it must be shown that there is family life for the purposes of Article 8, and that the interference with it (or lack of respect for it) is sufficiently serious to engage the potential operation of Article 8."
Lord Justice Mummery:
Lord Justice Lawrence Collins:
Order: Appeal dismissed