COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE AIKENS
| ZB (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Samantha Broadfoot (instructed by The Treasury Solicitor, London) for the Respondent
Hearing dates : 24 June 2009
Crown Copyright ©
Lord Justice Aikens :
"We therefore conclude that even bearing in mind all the interests of the family in maintaining family life with the appellant to the extent to which they have one, her removal would not be disproportionate bearing in mind that to the extent to which there is any family life between her and any of them that it cannot be continued in the same way in which it has existed until September 2007 when she came to the United Kingdom most recently".
The detailed findings of the AIT
Submissions of the parties on the appeal
"317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent… of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways…
(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; …
(v) has no other close relatives in his own country to whom he could turn for financial support; …"
"Grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused…
(7) failure by the person concerned to honour any declaration or undertaking given orally or in writing as to the intended duration and/or purpose of his stay;"
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. …….."
"82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom;
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, "
"(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect of his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? (3) If so , is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
"…the recognition in Advic v United Kingdom (1995) 20 EHRR CD125 that, whilst some generalisations are possible, each case is fact – sensitive places an obligation on both adjudicators and the Immigration Appeal Tribunal to identify the nature of the family life asserted and to explain, quite shortly and succinctly, why it is that article 8 is or is not engaged in a given case".
"There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family , the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant".
"It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search of a hard – edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires".
"To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed."
"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".
"Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandiali v United Kingdom  7 EHRR 471. 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….".
Analysis and conclusion
Lord Justice Wall:
Lord Justice Rix: