England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
IMMIGRATION JUDGE HOLT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th November 2011

LORD JUSTICE RIX:

1. This is the renewed application for permission to appeal by Mr Kee Kong Franky Chui from the determination of DUTJ Hall sitting in the Upper Tribunal (IAC) promulgated on 4 April 2011. The essential facts are that Mr Chui is a Chinese national from Hong Kong. He was born in 1962; he married his wife in Hong Kong in 1986 and after a brief period divorce starting in 1997 remarried her in 1998. He came to the United Kingdom during the short period of their divorce, in January 1998, and his wife and daughter arrived in March 1998 and they have remained here since, originally on student visas. Their daughter Abigail was born in 1989; she was eight years old at the time of her arrival here. She has lived here since and is now, I calculate, 22.
2. After various extensions to pursue his studies here in accountancy his lawful stay expired in November 2006. Therefore his family was lawfully here until November 2006 and has been unlawfully here since then. The applicant has a history of health problems being diagnosed with paranoid schizophrenia in 2001. The appellant made applications to regularise his position after the expiry of his visa in 2006, but ultimately in December 2009 the respondent, the Secretary of State for the Home Department, made the decision relevant to these proceedings that he should be removed. Decisions were made in the case of his wife and his daughter as well, but they have not appealed the decision so the only appeal is that of Mr Chui himself.
3. The matter came originally before IJ Wiseman who promulgated his decision on 21 December 2010 following an appeal to the Upper Tribunal. IJ Wiseman's decision was set aside on procedural grounds in its entirety, so the matter fell for consideration anew by IJ Hall sitting in the Upper Tribunal.
4. We are not told much about Mr Chui's wife, but in essence this application rests upon the position of his daughter Abigail. She attended school in this country from May 1998. She clearly did well, and following passing her International Baccalaureate and a gap year she obtained a place at the University of Exeter where she is currently studying medicine. She has continued to live at home with her parents while pursuing her degree. It is said in her case that she has been here for some 13 years since the age of 8, with leave to remain at any rate until 2006. She barely speaks Cantonese and the focus of her life is here. She has been successful in her studies and has put down extensive roots here. It is said she has no real memory of her life in Hong Kong. On the other hand, it is the case that she has not appealed against the separate immigration decision in her case to remove her as an illegal entrant.
5. IJ Hall in the determination from which permission to appeal is sought considered the appeal ultimately solely in terms of the appellant's private life. An appeal is no longer sought from that aspect of the determination below, although it was raised at the paper stage. What is however complained of, is that IJ Hall failed to consider the applicant's family life, and in connection with that the life, private or family, of his daughter and his wife, and in particular his daughter. It is suggested that she has a strongly arguable case by reference to her private life here based on Maslov v UK [2009] INLR 47, which states that strong reasons are required to deport someone who has at any rate had a settled private life from an early age here.
6. The applicant now wishes to rely upon the daughter's private life to say that IJ Hall erred in regarding his appeal as being limited to his private life as distinct from the family life, including the private life, of his family as a whole. Reference is made, of course, to the decision in the House of Lords of Beoku Betts v SSHD [2008] UKHL 39: the essence of which is that an applicant's right to respect for family life has to be considered by reference to the family unit as a whole. The question of disproportionality or otherwise has to be seen in the context in which affected family members are potentially regarded as victims.
7. Now what happened at the appeal below is that although the matter had previously been argued entirely in respect of private life, it appeared from the brief skeleton argument prepared by counsel then appearing for Mr Chui, Mr Nathan Jones, that reference was also being made to family life and to a citation of Beoku Betts, see paragraphs 11 and 12 of Mr Jones's skeleton argument below. It appears however, both from the terms of the determination below and from an attendance note which is put before us by Mr Buley, on behalf of the applicant today, coming from Mr Nathan Jones, that at the commencement of the hearing IJ Hall sought to define the parameters of the case by reference to the obvious intention to argue the matter on Beoku Betts grounds. However, in the light of the fact that there had been no appeal by the daughter herself against the immigration decision to remove her, the judge sought confirmation that that was indeed the position affecting the daughter.
8. In the circumstances IJ Hall found difficulty in seeing clearly how Mr Chui's appeal could be assisted by reference to the private or family life of the daughter or indeed the wife because neither of them, in the absence of an appeal, were entitled to remain in the country. Therefore the only place in which family life could be pursued would be in Hong Kong.
9. In the circumstances the relevant part for the purposes of the determination below reads as follows:

"12. It was confirmed by counsel at the outset of the hearing that the appeal of the appellant is limited to issues of consideration of his Article 8 private life rights only. Accordingly it is for the appellant to establish the existence of private life in the United Kingdom and that his removal would give rise to an interference with such rights. Once such interference is established I must strike a fair balance between the rights of the appellant on the one hand and those of the community on the other hand inherent in the whole of the Convention.

"13. I have already referred to the appeal grounds of the appellant which do not appear to assist. However the skeleton argument produced on behalf of the appellant, as already observed, refers not only to the appellant but also to Mrs Lua and their daughter Abigail Chui. Careful scrutiny of the respondent's bundle shows that in lodging his appeal on 29 December 2009 the appellant stated that two other members of his family were intending to appeal against an immigration decision, namely Mrs Lua and Ms Chui. The respondent's bundle does contain a notice of immigration decision to remove Abigail Chui from the United Kingdom as an illegal entrant under the provisions of Section 10 of the Immigration and Asylum Act 1999 dated 9 December 2009. However there is no appeal arising in relation to this notice and the only appeal which has ever been before the Tribunal for consideration is the appeal of Mr Chui. Yet further the notice of application which was before the Tribunal related only to Mr Chui. Accordingly reference in the paperwork prepared on behalf of the appellant to Mrs Lau and Abigail Chui as being appellants is incorrect and, for the purposes of the appeal before me, I am only able to consider the appeal of Mr Kee Kong Franky Chui and no other person.

14. It follows that because I have been informed that this is an appeal which relates to Article 8 private life rights only, I am only able to take into account the private life rights of Kee Kong Franky Chui and not those of his wife or daughter as claimed. I observe that the skeleton argument produced by Mr Jones refers extensively to family life existing. In the circumstances, however, I do not consider any claim for family life. I also observe that if an immigration decision has been taken in respect of any other party member of his family about which they complain, it would be a matter for that other family member to take steps so as to bring their position before the Tribunal in order to enable the appellate process to consider their situation. However, in this appeal, I am limited only to considering the position of Mr Chui."

10. It is said that the judge plainly erred in those considerations and that he also erred in considering that there was no intention before him to argue Mr Chui's appeal on other parameters. Thus reliance is placed on Mr Jones's attendance note in which he says:

"I have set out the position on behalf of the appellant in my skeleton argument which was that it was necessary for the tribunal to consider the family life between Mr Chui and his wife and daughter and the impact of removal on each of them. However, in light of the approach that Immigration Judge Hall had indicated he proposed to take I felt unable to argue otherwise, and neither accepted or rejected the approach Immigration Judge Hall indicated he intended to take."

11. On this application Mr Buley attractively argues that the judge had made a ruling and that in falling silent before the judge and saying that he neither conceded the point or otherwise Mr Jones was conceding nothing and that the point was still open to be taken on this appeal. In my judgment however I do not see it in that way. It is clear to me that IJ Hall was trying at the opening of the hearing -- in the way which is constantly done by all tribunals and judges -- to see if there was clarity in the issues which were before the tribunal or court. The immigration judge presented the difficulty about arguing family life of other family members in circumstances where there was no appeal in their case from decisions to remove them and Mr Jones did not demur from that. It seems to me that it is quite impossible on an application for permission to appeal -- and doubly so on this application which is for a second appeal with the strict and stringent test which binds the court in its jurisdiction on such a second appeal -- to say that that was simply a case of counsel falling silent in the face of a ruling. It was no such thing, and it was for Mr Jones to argue the point which it is said was the principal point which he came to argue and to make it clear that he did not agree with the judge's proposal as to how he saw the issues arising on the appeal.
12. In those circumstances it seems to me that there is, in truth, no important point of principle or practice or other compelling reason for this second appeal. It may be that Abigail had an arguable case based upon her private life, but it was one which she had not chosen to advance in any appeal. Therefore the only place, in truth, where family life can be pursued between husband, wife and daughter is in Hong Kong. It may be that Ms Chui if she had taken the point had a private life argument all of her own to pursue, to entitle her to remain in this country and to pursue her medical studies here. However, if one looks at the matter in terms of family life, she is an adult and it is well known and well accepted that adult children are for the purposes of family life, under Article 8, primarily and normally founding their own life even in circumstances where they still, for the present, live as a family unit with their parents. Ms Chui's private life aspects apart, this is a not untypical position where the family may live in one place and an adult child is pursuing their education and possibly their future career in another place. It seems to me therefore that in family life terms, even if the points were being argued for the first time and entirely afresh, the family life aspects of Abigail are very, very slight. In all these circumstances, because the judge took what seems to be a correct view of the structure of the argument before him, and in the absence of any appeal from Ms Chui, and by reason of the fact that Mr Chui's counsel did not seek to argue otherwise in the hearing below, there is no important point of principle or practice or other compelling reason why one has to go back to the very beginning to argue what is in any event a very weak argument by reference to family life, by reference to the daughter's education here, or otherwise by reference to her private life here, in circumstances where as matters stand the family can only be united in Hong Kong.
13. For those reasons I would refuse this application.

Order: Application refused.