ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE McGEACHY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
MR JUSTICE LEWISON
| A A O
||Appellant / Claimant
|- and -
|Entry Clearance Officer
||Respondent / Defendant
Mr Sarabjit Singh (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Tuesday 5th April 2011
Crown Copyright ©
Lord Justice Rix :
"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."
"In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for 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?"
Immigration Rule 317
"317 The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative 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:
(a) mother or grandmother who is a widow aged 65 years or over;…and
(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and…
(iva) can, and will, be maintained adequately…without recourse to public funds; and
(iv) has no other close relatives in his own country to whom he could turn for financial support."
"…I have given careful consideration to your rights under Article 8…However, I am not satisfied that you have established that there is family life as defined in Article 8 and as such am satisfied that there has been no breach of that article for the reasons stated. I have also considered your application should it be established that there is family life as defined in Article 8.
However, although there may be a perceived interference with your right to a family life under Article 8 such interference is justified for the purpose of maintaining an effective immigration control and is proportionate to that aim and does not therefore breach your Convention rights."
The determination of IJ Khan
"As far as Article 8 is concerned I should find that there is family life between the appellant and the sponsor. The sponsor cannot go and live in Kenya and the only place where this family can exercise family right is in the United Kingdom."
It is also relevant to point out that the judge recorded his view, in discussing the daughter's testimony, that she was "vague and evasive in giving evidence as to why she has not gone to see her mother in the last 12 years".
"31. I have taken all the evidence into consideration before coming to my decision in this matter…
35. However, I do not accept the sponsor's evidence in relation to her mother's condition described by her. The appellant was interviewed and she did not mention difficulties of going to the toilet and some of the medical problems. She said that she was taking painkillers for pains and had problem with her leg. I do find that the sponsor has somewhat exaggerated her mother's condition.
36. The appellant has been living with friends and neighbours since she arrived in Kenya. She has accommodation and is well looked after by her neighbours. The sponsor in the United Kingdom now financially supports her sending her $100 per month. The sponsor said that Mr Mohamed has told her that he is planning to leave Kenya. This [is] not mentioned anywhere in the written evidence and suddenly came out in the sponsor's oral evidence. I do not find it credible that she would miss such important [piece] of evidence out of her written witness statement. I do not accept this [piece] of evidence by the sponsor as credible.
37. The sponsor is in receipt of Income Support and has 7 children to support. It is said that she can maintain the appellant with the $100 per months she sends to her mother and the saving of £100 per month with the committee. This amounts to about £155 per month. I do not accept this submission. The…money the sponsor receives from the DSS is for her and her children to live on. It may be possible that at the present moment she is able to squeeze some savings to send money to the appellant but when the appellant comes to the United Kingdom she will have other needs with her old age. I am not convinced or persuaded that the sponsor will not make a further claim for the appellant and the DSS [would be] obliged to consider such claim. I find on the evidence that the appellant cannot be maintained in the United Kingdom without additional recourse to the public funds.
38. It is submitted that there is strong family life under Article 8 between the appellant and the sponsor. The sponsor has been in the United Kingdom for 12 years. Up to 2005 she was more concerned with her own immigration status. Although some family life remains between parents and children but there comes a time when it becomes weak. I do not accept on the evidence that there is strong bond between the appellant and the sponsor in this case.
39. On the evidence, I do not accept that the appellant meets the requirements of paragraph 317 HC of the Immigration Rules."
The reconsideration determination
"7. In relation Paragraph 317 (iii) the IJ has failed to determine this issue at all. The IJ was required to determine whether the Appellant "is financially wholly or mainly dependent on the relative present and settled in the United Kingdom."
Grounds 9ff were concerned with article 8. Thus ground 9 read:
"9. In relation to article 8 the IJ has failed to carry out adequate assessment of article 8. The IJ's decision on article 8 is extremely short (one paragraph) and totally inadequate."
Ground 10 continued –
"10. The IJ's failure to determine whether the Appellant is financially wholly or mainly dependent on the sponsor has a decisive impact on the article 8 assessment…"
The grounds then continued for several more pages in relation to article 8.
"I find that the IJ failed to make a finding as to whether the appellant is financially wholly or mainly dependent on the sponsor in the UK. I order reconsideration on this ground only."
"It was not clear from that order whether or not Immigration Judge Eshun considered that because of that alleged failure by the Immigration Judge the decision of the Immigration Judge not to find that the appellant's article 8 rights were infringed by the decision was incorrect."
Without resolving that question, however, SIJ McGeachy went on to consider the article 8 issue as it was argued before him on behalf of the appellant. In that respect the appellant may be said to have been fortunate. However, that is by now water under the bridge.
"10. I would comment that I do not consider that the judgment in ZB is of assistance to the appellant in this case as it is a completely different set of circumstances in that ZB was living with the daughter on whom she claimed to be dependent in Britain (and clearly was dependent on her) whereas the appellant in this case has not lived [with] or indeed seen the sponsor for twelve years.
11. Miss Oscroft accepted there was no challenge to the conclusions of the Immigration Judge that the state benefits on which the sponsor relied could not be considered to be sufficient to support the appellant. Rather she argued that the findings of the Immigration Judge were insufficient for him to have reached the conclusion that there was no family life between the appellant the sponsor.
12. In reply, Mr Melvin emphasised that Senior Immigration Judge Eshun had accepted that the Immigration Judge had properly concluded that the appellant could not meet the requirements of paragraph 317(iv)(a) of the Rules. The arrival of the appellant would lead to an increase in the payment of benefits to this family.
13. I find that there is no material error of law in the determination of the Immigration Judge. While I accept that his approach to article 8 as set out in paragraph 38 of the determination could have been more structured, what in fact the Immigration Judge is saying in that paragraph was that given that the sponsor had not seen the appellant for twelve years, the weakness of the family life between the appellant and the sponsor was such that the decision was not an interference with (or show a lack of respect for) the Article 8 rights of the appellant. That must surely be correct. I note from the sponsor's statement that after she came to Britain in 1997 she was living with he husband here until they separated in 2004. The appellant, however, remained with her own husband (the sponsor's stepfather) in Somalia [until] 2005 when he was killed. It cannot therefore be said that the appellant and the sponsor were exercising family life together after the sponsor left Somalia as they each had their separate families. Any family life which they had exercised came to an end therefore when the sponsor left Somalia, if not before, when she married. The appellant and the sponsor are adults who have not seen each other for twelve years. I accept that there may well be clear reasons for that but that is the reality. They have not been exercising family life over that very lengthy period and the decision is not an interference with, or lack of respect for their family life. I would add that, even if it were the case that the Immigration Judge could have found that there was some family life between the appellant and the sponsor, the fact that the sponsor is unable to support the appellant without recourse to public funds and that the appellant appears to have been able to live with others who have been taking care of her in Kenya for at least the last two years would mean that it would not be possible to conclude that the lack of respect for the appellant's family life was disproportionate."
"38. The Court reiterates the essential object of Article 8 is to protect the individual from arbitrary action by the public authorities. There may in addition be positive obligations inherent in effect[ive] "respect" for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.
The present case concerns not only family life but also immigration and the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.
Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State's obligations, the facts of the case must be considered."
"18…The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their decisions. But the main importance of the case law is in illuminating the value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which most people most heavily depend, socially, emotionally and often financially. 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 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. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment…"
"although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
Lord Bingham commented:
"I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of [exceptional] cases, identifiable on a case by case basis."
I have put the word "exceptional" in square brackets, as reflecting the necessary deletion of it engendered by what was said in Huang at , where the appellate committee said:
"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets the test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."
"In our judgment, the recognition in Advic [(1995) 20 EHRR CD 125] that, whilst some generalisations are possible, each case is fact-sensitive places an obligation on both adjudicators and the IAT to identify the nature of the family life asserted, and to explain, quite shortly and succinctly, why it is that Art 8 is or is not engaged in a given case."
Lord Justice Lloyd :
Mr Justice Lewison :