ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE KEBEDE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHRISTOPHER CLARKE
SIR STANLEY BURNTON
| VIKAS SINGH
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Hearing date: 18 June 2015
Crown Copyright ©
Sir Stanley Burnton:
2. …[The Appellants'] father, a professional Indian cuisine chef, came to the United Kingdom in 2001 with entry clearance to work as a chef and acquired indefinite leave to remain on the basis of his continuous residence as a work permit holder. Following an appeal heard in May 2008 against a refusal to grant them and their mother entry clearance to join their father in the United Kingdom, they were granted entry clearance and joined him in the United Kingdom on 5 October 2008 with visas valid until 8 December 2010. On 17 February 2009 the appellants' father and mother travelled to India, intending to bring their three other children to the United Kingdom. However on 3 March 2009 their father passed away in India. Their mother, it is claimed, returned to the United Kingdom in July 2010 and went back to India on 30 May 2011. She then returned to the United Kingdom on 3 July 2011. In the meantime, on 7 December 2010 the appellants and their mother applied for indefinite leave to remain in the United Kingdom outside the Immigration Rules.
3. In the letter accompanying the application for indefinite leave to remain, details were provided of the appellants' father's residence in the United Kingdom and his employment as a chef, and of the appellants having been trained themselves by their father as chefs with a view to their father setting up his own restaurant business. Their father's death in India came as a devastating shock to the family. The letter stated further that the appellants, having been trained as chefs, were both in employment and were supporting their mother and their family. They had the support of their father's close friends in the United Kingdom, especially Mr Suresh Mehra and his family, with whom they were employed. …
4. The appellants' mother was granted indefinite leave to remain on 9 May 2011, although the basis for that grant to leave is unknown. The respondent, however, refused the appellants' applications under paragraph 322(1) of HC 395, on the grounds that variation of leave was being sought for a purpose not covered by the Rules and that the appellants' removal would not breach Article 8 of the ECHR. The respondent considered that the appellants had not established a family life with their mother since they were living an independent life at a separate address to her.
19. … the appellants' mother appears to have been granted indefinite leave to remain on a completely erroneous basis, on the understanding that she had been living in the United Kingdom continuously for over two years, which was not the case. At section 6 of her application form (page 141 of the appellants' appeal bundle), she stated that she had first entered the United Kingdom on 8 October 2008 and confirmed that she had not had any absences since then. The covering letter accompanying that application form supported that statement and referred only to the appellants' father having returned to India in March 2009. That was the basis upon which the grant of indefinite leave to remain was assessed. However that is clearly not true. According to the evidence in the statements of the appellants and their mother, she left the United Kingdom for India with her husband on 17 February 2009 and did not return until 3 July 2010. She then left the United Kingdom on 10 May 2011 and returned to the United Kingdom on July 2011, That in itself is inconsistent with the grounds of appeal before the FTT, dated 2 June 2011, which stated that the appellants had been supporting their mother and their younger siblings in India since the death of their father and following their mother's return to India in March 2009. A similar indication was given by Mr Mehra in his statement of 30 August 2010, where the clear implication was that the appellants' mother remained in India. There is therefore inconsistent evidence as to the amount time spent by the appellants' mother in the United Kingdom since February 2009, some of which goes so far as to suggest that she had been based in India since returning there and that she had returned to the United Kingdom only in July 2011, shortly before the appeal hearing before the FTT. At the very least the evidence suggested that she had been absent from the UK for nearly a year and a half. Whatever the true picture is, it is plain that the respondent's understanding at the time the grant of indefinite leave to remain was made, was that the appellants' mother had been living continuously in the United Kingdom for over two years, whilst that was clearly far from the true situation.
21. Turning next to Article 8, I do not accept that there is family life between the appellants and their mother, following the principles in Kugathas v SSHD  EWCA Civ 31. The appellants are adults and there is no evidence of any particular dependency between them and their mother over and above the usual emotional and other ties that exist between parents and their adult children. Whilst the FTT found there to be family life, that conclusion was reached upon an apparent failure to appreciate the fact that the appellants' mother had been living apart from them in India for more than a year. As stated above, there is no consistent evidence as to the period spent by their mother in the United Kingdom since their father's death, but the evidence suggests that she has travelled between India and the United Kingdom and, whilst she has been granted indefinite leave to remain here, she appears to be based in India as much as, or more than in the United Kingdom. She is therefore more than capable of living apart from the appellants and is still a relatively young woman, having only just turned 50 years of age. The appellants, likewise, are able to live independently from their mother. Whilst there may be an element of financial dependence by the appellants' mother upon them, that alone does not constitute family life for the purposes of Article 8.
22. However, the appellants have clearly established a private life in the United Kingdom, having lived here for over three years and having established themselves as chefs in an Indian restaurant in Surrey. Their removal to India would clearly interfere with that private life and Article 8 is engaged. Contrary to [counsel for the appellants] Mr Slatter's submissions, and for the reasons I have given above, such an interference is in accordance with the law and is, I find, in pursuit of a legitimate aim, namely the economic well-being of the country as expressed in terms of immigration control. Mr Slatter sought to argue that the appellants' presence was beneficial to the economic well-being of the country as a result of their employment and their contribution to their employer's business, but I do not agree with him. They have no basis of stay here and there are no doubt many others who do have a proper basis of stay here and who would be more than willing to have such employment opportunities. The argument that their financial support prevents their mother becoming a burden on the state is not in the least bit persuasive, in particular given that her ability to stay here appears to have been granted on a false premise and that there is no reason why she could not find employment and support herself.
23. Turning, therefore, to proportionality, I find that any interference with the appellants' private life caused by their removal from the United Kingdom is justified and proportionate. Their ties to the United Kingdom are limited. They have resided here for only three and a half years and that was on the basis of their dependency upon their father who has since sadly passed away. There is no suggestion that they have family in the United Kingdom other than their mother, and their three siblings all remain in India. Although their mother has indefinite leave to remain here, she has spent much of her time apart from them, in India. There is, in any event, no reason why she could not return with them to India, in particular given that her three other children remain there. There is no evidence of any particular integration by the appellants into British society. They work in an Indian restaurant and have produced no evidence of ties outside the Indian community. Although it is claimed that they are specialists in their field of work, that work is Indian cookery, which can be replicated in India and they should therefore have no difficulty finding employment in India. With regard to their ties to Mr Mehra, whilst they may be close, these are not family ties. Mr Mehra gave evidence to the effect that his business would suffer if the appellants had to leave. However, there is no reason why he could not employ other skilled Tandoori chefs and other staff to cover the work they do. Whilst the appellants provide financial support to their family in India as a result of their employment in Mr Mehra's business there is no reason why they could and would not find employment in India in order to continue that family support. It may be that salaries would not be as high in India, but that is not a reason to justify a grant of leave. Whilst I have some sympathy for the appellants, given the circumstances of their move to the United Kingdom and their father's untimely death, which I have taken into account, it remains the case that they are simply not able to succeed under Article 8. I find that their removal to India would not be disproportionate or in breach of Article 8 and I would therefore dismiss their appeals.
The parties' contentions
The appellant was a Sri Lankan asylum–seeker who had spent about 15 years living in Germany before coming to the UK in 1999. He claimed that he faced persecution in Sri Lanka and that whilst in Germany he had enjoyed family life under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 with his mother, brother and sister's family, who were recognised as refugees there. His sister's family had also visited him in the UK for a 3–week period and there continued to be regular telephone calls between the appellant and his family in Germany. The Secretary of State refused his asylum and human rights claims. On appeal, the adjudicator dismissed the asylum appeal but allowed the human rights appeal on the basis that removal from the UK would interfere with the appellant's family life with his relatives in Germany and that the quality and strength of the family life would diminish to a non–existent level by reason of the greater distance. The Secretary of State appealed to the Immigration Appeal Tribunal, which held, in effect, that the appellant had not established a family life in the UK and that he could not show an established family life in the UK on the basis that it is more convenient for him to be in contact with his relatives in Germany from the UK rather than from Sri Lanka.
Generally, the protection of family life under Article 8 involves cohabiting dependants, 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.
17 Mr Gill QC [counsel for the appellant] says that none [of the authorities cited] amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning 'support', in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, 'real' or 'committed' or 'effective' to the word 'support', then it represents in my view the irreducible minimum of what family life implies. It may be that, for a time in Germany, that minimum was reached, as between the appellant and his family there; but that time has gone.
18 I would add, for completeness, that it is probable that the natural tie between parent and infant is a special case which may in some cases supersede any need for a demonstrable measure of support: see Boughanemi v France (1996) 22 EHRR 228 , at para 35.
19 Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Art 8 .
24 There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.
25 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 Balkandali v United Kingdom (Application Nos 9214/80, 9473/81, 9474/81) (1985) 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. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the UK, as the Tribunal held.
26 The links with this jurisdiction are however relevant to this case in another sense. The appellant left Germany without any act of the UK Government and accordingly the only relevant family life in this case is that which exists between the appellant in this country and his immediate family. There have been telephone calls between them and also a single visit by the sister. I appreciate that the family are refugees and take account of the circumstances which occurred in Sri Lanka, to which I have already referred. However, in my judgment, a family life cannot [be] shown on the evidence that was before the adjudicator.
31 The first real question arising in the present case is whether or not there has existed during the 3 years the appellant has been in this country any family life within the meaning of Art 8, such that his proposed removal now to Sri Lanka could reasonably be said to interfere with respect for it. The appellant is now in his 30s. It may perhaps be that during the 15 years or so he spent in Germany before coming to this country in 1999, he was then enjoying what could properly be described as family life, or at any rate private life, through his relationship and contact there with his widowed mother and his brother and sister. But even if he did then enjoy such private or family life (and I reach no conclusion one way or the other as to that), there was on any view substantial interference with it when, for reasons good or ill, the appellant left Germany and came to this country in 1999. The only contact he has enjoyed with his family since then has been: (a) a single 3–week visit made to him here in August 2000 by his sister, her husband and their young daughter; and (b) periodic phone calls between the appellant and his relations in Germany. Nothing either in the domestic or the Strasbourg jurisprudence, to my mind, supports the view that in these circumstances family life can properly be said to have been enjoyed for these last 3 years.
58 With regard to the applicant's relation to his family of origin, the court notes that the applicant had been born in Germany, where he lived with his parents and sister until his arrest in January 1999. During his prison term, he kept in touch with his family, at least by writing letters to his mother. He further asserted that he played a special role in the family following the tragic death of his brother. Under these circumstances, the court finds that the applicant's expulsion interfered to a certain degree also with his right to respect for his family life.
Nonetheless, given the gravity of his crimes, the deportation was held not to have infringed the applicant's rights under Article 8.
46 The court recalls that in Bouchelkia v France (Application No 23078/93) (1998) 25 EHRR 686 , para 41, when considering whether there was an interference with Art 8 rights in a deportation case, it found that 'family life' existed in respect of an applicant who was 20 years old and living with his mother, stepfather and siblings. In Boujlifa v France (Application No 25404/94) (2000) 30 EHRR 419, para 36, the court considered that there was 'family life' where an applicant aged 28 when deportation proceedings were commenced against him had arrived in France at the age of 5 and received his schooling there, had lived there continuously with the exception of a period of imprisonment in Switzerland and where his parents and siblings lived in France. In Maslov, cited above, para 62, the court recalled, in the case of an applicant who had reached the age of majority by the time the exclusion order became final but was living with his parents, that it had accepted in a number of cases that the relationship between young adults who had not founded a family of their own and their parents or other close family members also constituted 'family life'.
47 However, in two recent cases against the UK the court has declined to find 'family life' between an adult child and his parents. Thus in Onur v United Kingdom (Application No 27319/07) (unreported) 17 February 2009, paras 43–45, the court noted that the applicant, aged around 29 years old at the time of his deportation, had not demonstrated the additional element of dependence normally required to establish 'family life' between adult parents and adult children. In Khan v United Kingdom (Application No 47486/06)  INLR 567, para 32, the court reiterated the need for additional elements of dependence in order to establish family life between parents and adult children and found that the 34-year-old applicant in that case did not have 'family life' with his mother and siblings, notwithstanding the fact that he was living with them and that they suffered a variety of different health problems. It is noteworthy, however, that both applicants had a child or children of their own following relationships of some duration.
48 Most recently, in Bousarra, cited above, paras 38–39, the court found 'family life' to be established in a case concerning a 24-year-old applicant, noting that the applicant was single and had no children and recalling that in the case of young adults who had not yet founded their own families, their ties with their parents and other close family members could constitute 'family life'.
49 An examination of the court's case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having 'family life'. However, it is not necessary to decide the question given that, as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of 'private life' within the meaning of Art 8. Thus, regardless of the existence or otherwise of a 'family life', the expulsion of a settled migrant constitutes an interference with his right to respect for private life. While the court has previously referred to the need to decide in the circumstances of the particular case before it whether it is appropriate to focus on 'family life' rather than 'private life', it observes that in practice the factors to be examined in order to assess the proportionality of the deportation measure are the same regardless of whether family or private life is engaged (Üner, cited above, paras 57–60).
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  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..
21. Art 8 cases, including those before the court, also encounter occasional difficulty in the application of Lord Bingham's tabulation in Razgar. In §17, it will be recalled, he set out the sequence of questions as follows:
"(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?"
22. As this court made clear in AG (Eritrea)  EWCA Civ 801, §26-28, the phrase "consequences of such gravity" in question (2) posits no specially high threshold for art. 8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art. 8(1) is to be engaged.
22. … The facts in the present case, as accepted by the tribunal, are of a mother who has been living for many years now with two young adult sons in the same household. They have been, and are, helping and supporting each other in the way members of a family living together usually do. They are not financially dependent on each other but there are undoubtedly emotional ties. Some of the expressions to which reference has been made in the Strasbourg jurisprudence, "committed relationship", and "real and effective family ties", would appear to cover the present situation. However, I accept that the Strasbourg jurisdiction does not all point in that direction. Moreover, I regard myself as bound by the decisions of this court to which I referred, in particular the approval in the case of Kugathas of the Commission's decision in S and the approach to that decision of Sedley LJ. The test is that applied by the tribunal, as appears from the expressions in the determination. The behaviour is "no way exceptional or beyond the norm" (at paragraph 24), an expression repeated in paragraph 26.
23. I follow that a distinction between underage children and adult children may for many purposes properly be drawn. It is, however, common knowledge that many children, both in this jurisdiction and possibly in other member states, do remain in family homes beyond the age of majority and at least until they are well into their twenties. Having regard to the ordinary use of words, I find it difficult to say that family life determines, subject to exceptional circumstances, when the child or children attain their majority.
35. … Whether family life exists for the purposes of Article 8 as between a parent and an adult child must depend on the facts. I do not think it necessarily automatically determines on obtaining majority, but I am satisfied that the appellant failed to establish family life before the immigration judge and that there is no basis on which this court can interfere with that decision.
37. On the basis Kugathas, particularly paragraphs  and  in the judgment of Sedley LJ and paragraph  in the judgment of Arden LJ, the Judge was correct to conclude that there was no family life engagement of Article 8 of the Convention.
16. … Normal emotional ties will exist between an adult child and his parent or other members of his family regardless of proximity and where they live. Scrutinising the relevant facts, as one is obliged to do, it is apparent that the respondent had lived in the same house as his parents since 1994. He reached his majority in September 2005 but continued to live at home. Undoubtedly he had family life while he was growing up and I would not regard it as suddenly cut off when he reached his majority.
45. It seems to me that adult children (male or female) who are young students, from most backgrounds, usually continue to form an important part of the family in which they have grown up. They attend their courses and gravitate to their homes during the holidays, and upon graduation, while (as the FTT put it) they seek to "make their own way" in the world. Such a child is very much part of the on-going family unit and, until such a child does fly the nest, his or her belonging to the family is as strong as ever. The proportionality of interference with the family rights of the various family members should receive, I think, careful consideration in individual cases where this type of issue arises.
Lord Justice Christopher Clarke :
Lord Justice Richards :