Case No: C5/2008/2345
Neutral Citation Number: [2009] EWCA Civ 234
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT Nos: OA/35641, 35665, 35669/2007]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 11th February 2008

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE LAWRENCE COLLINS
and
LORD JUSTICE SULLIVAN
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Between:

	JB (INDIA) & ORS	
Appellants	
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ENTRY CLEARANCE OFFICER	

Respondent	

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Mr R de Mello (instructed by Sultan Lloyd) appeared on behalf of the Appellants
Mr J Beer (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

1.	The three appellants are siblings.  They appealed against the respondent’s refusal on 27 June 2007 to issue them with entry clearance to settle in the United Kingdom with their mother, SJ, who is their sponsor.  In a determination promulgated on 12 March 2008 their appeals were dismissed under the Immigration Rules by Immigration Judge Parker, but allowed on Article 8 grounds.  

2.	When considering the appellants’ Article 8 appeal, Immigration Judge Parker said that he was considerably helped by the Court of Appeal’s decision in Entry Clearance Officer Mumbai v NH (India) [2007] EWCA Civ 1330.  He concluded that there was family life between the appellants and the sponsor, that refusal of entry clearance was an interference with that family life, and that the entry clearance officer’s decision to refuse entry clearance was disproportionate.

3.	The respondent applied for reconsideration of Immigration Judge Parker’s decision, alleging that he had made material errors of law.  For present purposes it is necessary to refer to only two of those alleged errors.  They were as follows, that the Immigration Judge had: 

“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 [2003] EWCA Civ 31, the key case law on this issue…”

4.	Reconsideration was ordered by Senior Immigration Judge McKee who said:
 
“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.”

5.	Following a first-stage reconsideration in which Senior Immigration Judge Freeman concluded that there had been an error of law in Immigration Judge Parker’s determination, the second-stage reconsideration was heard by Senior  Immigration  Judge  McKee and Immigration  Judge  Colyer on 17 July 2008.  In a determination promulgated on 28 July 2008 they concluded that there was no family life between the appellants and their sponsor for the purposes of Article 8 and dismissed the appeals.  

6.	The appellants appeal against that decision.  In a nutshell Mr de Mello submitted on their behalf that Immigration Judge Parker did not err in concluding that there was family life between the appellants and the sponsor for the purposes of Article 8 and the Tribunal’s decision on reconsideration that there was no such family life was itself in error.  

7.	Before looking at Immigration Judge Parker’s reasoning it is helpful to set out the Tribunal’s reasoning on reconsideration for reaching the conclusion that there was no family life between the appellants and the sponsor; because that reasoning demonstrates: (a) the extent to which the facts in NH (also referred to as “Halai’s case” in the reconsideration determination) are to be distinguished from those in the present case; and (b) the relevance of the Kugathas decision, which the respondent had contended had not been considered by Immigration Judge Parker.

8.	In paragraphs 26 to 29 of the reconsideration determination, the tribunal said:

“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.”

9.	The Tribunal concluded, in paragraph 33 of its determination:
 
“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.”

10.	In support of his submission that the refusal of a “family reunion” was of itself sufficient to engage Article 8(1), Mr de Mello referred to a decision of the European Court of Human Rights in Sen v The Netherlands [2003] EHRR 81.  Sen was cited in paragraph 19 of Sedley LJ’s judgment in NH:
 
“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’”.

11.	When considering that observation, it is important to bear in mind that in Sen the European Court of Human Rights was considering a refusal to grant an entry permit to an applicant who was still a minor.  Indeed she was only nine years old at the time the application was made. The European Court of Human Rights was not deciding that the bond which exists between a child and his parents necessarily amounts to “family life” for the purposes of Article 8 when the child in question has long ceased to be a minor and has become an adult.  In such a case, Kugathas v SSHD [2003] EWCA Civ 31 is authority for the proposition 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.  That contrasts with the approach of Immigration Judge Parker, which was in error in the following respects.

12.	Having said in paragraph 16 of his determination that he was considerably helped by the NH case, he said in paragraph 17:

“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.”

13.	Pausing there, as I have mentioned above, Sen was concerned with a child who was still a minor at the time of the application.  It is unsurprising that, on the facts of NH, the tribunal had found that there was “a strong family life”.  The appellant was just over 18, was a student and was still fully dependent on, and living with, both of his parents.  His mother had come to the United Kingdom in 2003 when the law had changed, enabling certain British overseas citizens to be registered as British citizens.  Having registered, she then went back to India to support the applications of her husband and student son.  See paragraph 33 of the Tribunal’s determination, cited in paragraph 18 of Sedley LJ’s judgment in NH. 

14.	Immigration Judge Parker did not refer to Kugathas in his determination.  More to the point, there is no recognition in his determination that family life within the meaning of Article 8 will not normally exist between adult children and their parents unless there is evidence of further elements of dependency which go beyond the normal emotional ties that one would expect to exist between parents and their children.  Having referred to certain passages of the judgment of Sedley LJ in NH, Immigration Judge Parker returned to the appellant’s case towards the end of paragraph 17 of his determination, saying: 

“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.”

15.	On behalf of the respondent, Mr Beer submitted -- correctly in my judgment -- that even if it was the case that the sponsor had moved to the United Kingdom in 2001 with the expectation of the appellants joining her subsequently, that, coupled with the fact that there had been repeated applications by the appellants to join the sponsor, was not capable of establishing the existence of family life between these adult appellants and the sponsor for the purposes of Article 8.  As Mr de Mello acknowledged, when the sponsor came to the United Kingdom in 2001 she came as a visitor.  At that time she could not have had any expectation that the appellants would be able to join her.  She, and they, may well have hoped that they would be able to do so but the quota system was not abolished until March 2002.   

16.	Having concluded that there was family life which would be interfered with, Immigration Judge Parker then proceeded to consider the question of the proportionality of that interference.  In paragraphs 20 and 21 he said:
 
“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.”

17.	The determination must be read as a whole and in a common-sense way.  If there was material in these passages which would have justified a conclusion that there was family life for the purposes of Article 8 when entry clearance was applied for in 2007, then for my part I would have been prepared to consider it even though the Immigration Judge referred to it when considering the topic of proportionality.  However, there is no such material.  The conclusion that the appellants were clearly dependent on their mother “to some extent” is a reference back to the Immigration Judge’s earlier conclusion in paragraph 14 of the determination that for the purposes of Rule 317 the appellants were not mainly dependent financially on the sponsor.  Financial dependence “to some extent” on a parent does not demonstrate the existence of “strong family ties” between adult children and the parent nor are weekly telephone calls evidence of anything more than the normal ties of affection between a parent and her adult children.  In summary, even on the most benevolent reading of the determination, there was no rational basis on which, had he applied the Kugathas approach, Immigration Judge Parker could have concluded that there was family life between these three adult appellants, who were living together in India, and their mother, who had been living in the United Kingdom since 2001.  

18.	Mr de Mello submitted that the proper test for determining whether there was family life was found in AG (Eritrea) v SSHD [2007] EWCA Civ 801 but that case was not concerned with the circumstances in which it can be said that an adult child enjoys family life with its parents.  The appellant in that case was 14 years old when he arrived in the United Kingdom on his own, having been sent here by a kinsman of his father after his mother had been abducted.  Mr de Mello also submitted that this appeal was on all fours with a decision of this court in RO (India) v Entry Clearance Officer [2008] EWCA Civ 1525.  However in that case the Immigration Judge had clearly applied the approach in Kugathas when deciding whether or not there was family life which would be interfered with.  The conclusions in paragraph 19 of the Immigration Judge’s determination in that case are set out in paragraph 2 of the judgment of Laws LJ: 

“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.’” 

19.	The Immigration Judge’s approach to this issue in the case of RO merely highlights the deficiencies in Immigration Judge Parker’s determination in the present case.  That Immigration Judge asked herself the correct question.  Immigration Judge Parker did not.  

20.	Mr de Mello laid great stress on the “historical wrong” which had deprived the sponsor of a right of abode in the United Kingdom by legislation which had been acknowledged to be racially discriminatory and then further discriminated against her on account of her sex because married women could not apply for vouchers under the special quota voucher scheme unless their husbands were incapacitated.  The history of the special quota voucher scheme and its application to the sponsor and her family is set out in some detail in the reconsideration determination and it is unnecessary to repeat it in this judgment.  The decisions in NH and RO are authority for the proposition that, where there is an interference with family life sufficient to engage Article 8(1), recognition that the family has been the victim of a “historic injustice” may well be relevant, in some cases highly relevant, when the proportionality of that interference is considered under Article 8(2), but, as the Tribunal said on reconsideration in the present case:

“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.”

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 and for my part I would dismiss this appeal.

Lord Justice Mummery:

23.	I agree.

Lord Justice Lawrence Collins:

24.	I agree.

Order: Appeal dismissed