England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
UTJ Clive Lane

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2016

Lord Justice Underhill :

INTRODUCTION

1. The Appellant, who was born on 26 June 1991, is one of four children of Thambiraja Thillainathan, to whom I will refer as the father, and his wife Nageswary Thillainathan. He has an elder brother and two younger sisters. They are all Sri Lankan by original nationality.
2. On 15 January 2002 the father came to this country and applied for asylum. His wife and children stayed in Sri Lanka. His claim for asylum was unsuccessful, but on 3 August 2010 he was granted indefinite leave to remain, although on what basis is unclear.
3. In January 2010 the elder son came to the UK on a student visa. In April 2013 his leave to remain was curtailed. Subsequent developments in his case are not material for present purposes, but we were told that he remains in this country although liable to removal.
4. In February 2012 the members of the family who were still in Sri Lanka – that is, the Appellant and his mother and sisters – applied for entry clearance to join the father in this country. At that date the Appellant was aged 20. His sisters were still under 18.
5. By decisions dated 18 April 2012 the Entry Clearance Officer in Chennai granted entry clearance in the case of the Appellant's mother and sisters but refused it in his case. His mother and sisters came to the UK shortly afterwards. The result is that the Appellant was the only member of the immediate family left in Sri Lanka.
6. The Appellant appealed to the First-tier Tribunal ("the FTT"). He was represented by an immigration consultant engaged by his father, Mr David Williams. The grounds of appeal relied on paragraph 317 of the Immigration Rules, which provides that a dependent child over the age of 18 will be entitled to leave to enter "if living alone outside the UK in the most exceptional compassionate circumstances" (see sub-paragraph (i) (f)). (There are also other conditions, particularly as to the availability of support and accommodation, but they are not relevant for present purposes.) It was also contended that refusal would represent an unlawful interference with the Appellant's rights under article 8 of the European Convention of Human Rights ("the Convention") by "[preventing] him from enjoying family life with his parents and siblings". The grounds of appeal included a statement that:

"Culturally, regardless of their age, children of Sri Lankan families live with their parents until they enter into marriage. The Appellant is single."

7. The appeal was heard before FTTJ Herwald on 15 January 2013. By a determination promulgated on 23 January he found that the high threshold of "most exceptional compassionate circumstances" was not reached in the Appellant's case. He also dismissed the claim under article 8 outside the Rules. I will return to his reasons in due course.
8. Permission to appeal to the Upper Tribunal was given by UTJ Eshun. That appeal was heard by UTJ Clive Lane on 6 June 2013. The Appellant was represented by Mr Nishan Paramjorthy of counsel. The Tribunal's determination was promulgated on 14 June 2013. Both grounds of appeal were dismissed. Again, I will return to the reasoning of the Tribunal in due course.
9. The Appellant's application for permission to appeal came before me on an oral renewal, following refusal on the papers by Longmore LJ, as long ago as 13 February 2014. The Appellant's grounds of appeal had not been professionally drafted and disclosed no arguable grounds. But I was persuaded to give permission to appeal as a result of the advocate's statement and oral submissions of Mr Erum Waheed of counsel, who had not appeared below. The issues on which the appeal was allowed to proceed will appear from the discussion below.
10. Before us Mr Waheed has again appeared for the Appellant, leading Mr Michael Biggs. Ms Cathryn McGahey QC has appeared for the Respondent.

THE DECISION OF THE FTT

11. Paras. 1-8 of the FTT's Reasons are introductory and nothing turns on them. The Judge records that he heard evidence from the father and identified the bundles before him, but he does not attempt to summarise the evidence. I should say that it appears from another passage that he had witness statements from the Appellant and his father.
12. Paras. 9-13 are headed "The Applicable Law" but are concerned only with general background matters such as the burden of proof. I should refer to one aspect. Para. 11 refers to section 85 (4) of the Nationality Immigration and Asylum Act 2002, which at the material time read:

"On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."

The Judge said that that provision applied to the present case. At the hearing the Court raised with the parties whether that was correct, and both Mr Waheed and Ms McGahey agreed that it was in fact wrong. Section 85 (4) was subject to sub-section (5), which provided for exceptions set out in section 85A. One of those exceptions – see sub-section (2) – was where the application was for entry clearance: in such a case "the Tribunal may consider only the circumstances appertaining at the time of the decision". (I should mention for completeness that in AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32, [2009] 1 WLR 1385, the House of Lords held that these provisions – or, strictly, an earlier but substantially identical version of them – were not incompatible with article 8 of the Convention.)

13. At paras. 14-20 the Judge summarises the parties' cases and the grounds of appeal, but he does so only very briefly and there is nothing that I need to refer to for present purposes.
14. Para. 21 is headed "My Findings". It contains a number of findings of fact about the Appellant's circumstances in Sri Lanka as at the date of the decision, i.e. after his mother and sisters had left (though for the reason given at para. 12 above that was not the material date). The findings are explicitly directed to the question of "most exceptional compassionate circumstances" under rule 317. They are sufficiently summarised at sub-paras. (g) and (h), which read as follows:

"(g) I remind myself of the Appellant's age, but he is familiar with his surroundings where he has lived for many years and he has strong community ties. He has been permitted to study and has followed studies in his homeland. There is nothing to suggest he can't continue his studies there, nor gain work in that country.

(h) The Appellant stated that he is in touch with his family constantly, including by skype and his family is able to send remittances to him, to keep him going in Sri Lanka and can continue to do so."

(I should add, because it is material to a point that comes up later, that he refers to the Appellant as "living in a house where the family have lived with him for many years".) His conclusion is that "most exceptional compassionate circumstances" had not been demonstrated, and accordingly at para. 22 he dismisses the appeal under the Rules. That part of his decision is not challenged before us.

15. The Judge then turns to the claim under article 8 outside the Rules. He reviews the relevant law at paras. 24-25. At para. 24 he sets out the familiar five "Razgar questions": see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, per Lord Bingham at para. 17. As regards the first question, namely whether the Respondent's decision would interfere with the Appellant's right to respect for his private or family life, he comments:

"Article 8 envisages real, committed or effective support in the personal sense and financial support is not necessarily enough in itself (Kugathas v SSHD (2003)) and Imoh 2002 UKIAT 01967). Relationships between adults would not necessarily acquire the protection of Article 8 without evidence of further elements of dependency involving more than the normal emotional ties (S v UK (1984))."

He then goes on to review at some length some of the authorities relating to proportionality, including at para. 25 a (then) recent decision of the Upper Tribunal about section 55 of the Borders Citizenship and Immigration Act 2009. I am bound to say that I am not sure that all the authorities referred to were relevant to the issues in the present case, but nothing turns on this passage for the purposes of this appeal.

16. The Judge then continues:

"26. I find that the Appellant fails at the first hurdle. He is an adult, and while financially dependent on the rest of his family in the UK, I have no evidence before me to suggest that this relationship would acquire the protection of Article 8 without evidence of further elements of dependency.

27. Even if there were an interference with the right to respect for private life, which there is not, it would not have consequences of such gravity as potentially to engage the operation of Article 8. It would be in accordance with the law and have the legitimate aim of forwarding immigration control.

28. I am persuaded that it would be proportionate for reasons given above – this adult can continue his life in Sri Lanka as before. For the avoidance of doubt, I have considered as necessary the interests of a juvenile sibling residing in the United Kingdom. No evidence was given in relation to that child whatsoever, and I find that that child can continue his or her present relationship with the Appellant, with the maintenance of the status quo."

17. The reasoning there is distinctly compressed. I would analyse it as follows:

(1) Para. 26 is clearly a decision that article 8 would not interfere with the Appellant's family life, essentially because he was at the relevant date an adult and there was no evidence of "further elements of dependency" on "the rest of his family in the UK". The reference to "further elements of dependency" derives from S v United Kingdom (1984) DR 196, no doubt mediated through the well-known decision of this Court in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, [2003] INLR 170, to both of which the Judge had already referred in para. 24. I say more about Kugathas below.

(2) It was agreed before us that the purpose of para. 27 was to address the Appellant's private life, as distinct from his family life which was considered in the previous paragraph. That may be right, but I am inclined on reflection to think that para. 26 was intended rather to address the first Razgar question as concerns both family life and private life (though in truth only the former could really have been in play); and that para. 27 is directed, by way of fallback, to the second to fourth Razgar questions – namely whether any interference was of sufficient gravity to engage the operation of article 8, whether it was in accordance with the law and whether it had a legitimate aim. But any uncertainty does not need to be resolved because it is the previous and subsequent paragraphs that matter for present purposes.

(3) The first sentence of para. 28 is evidently directed to the fifth Razgar question, namely whether if article 8 is (to use the shorthand) engaged the interference with the family lives of the Appellant and the other members of his family occasioned by refusing him leave to enter while granting it to his mother and sisters is proportionate. It was common ground before us that "the reasons given above" must be wholly or mainly those given in para. 21, since it is the findings in that paragraph that demonstrate, in the Judge's view, that the Appellant can continue to live in Sri Lanka "as before".

(4) The last two sentences of para. 28 must refer to the Appellant's younger sister. They are by way of a footnote and do not affect the substance of the reasoning.

In short, the FTT held that article 8 was not engaged (the first and second Razgar questions), but that if it was the interference with the Appellant's family life was justified (the third to fifth questions).

THE DECISION OF THE UPPER TRIBUNAL

18. The grounds of appeal from the FTT to the UT, pleaded by Mr Paramjorthy, were rather discursive. But the broad point made was that the FTTJ had "failed to engage with the fact that the Appellant had not established an independent family life and had lived his entire life from child to adulthood with his family". Reference was made to "South Asian familial tradition", under which "a child remains a family member until marriage". That failure was said to have led also to his having "failed to engage with proportionality". The Judge was said to have made a particular error in finding that the Appellant continued to live in the family home, whereas that had in fact been sold in anticipation of the remaining members of the family joining the father in the UK. No point was taken on the fact that the Judge had made his decision by reference to the wrong date.
19. In his determination the UTJ started by dealing with the error about the house where the Appellant was living. He doubted whether the true position had in fact appeared in the evidence before the FTT, but he held that any error was in any event immaterial. This point is not now pursued. In the course of that discussion he held, at para. 5, that the FTTJ had not failed to engage the issue of proportionality: he referred to para. 28 of the FTT's determination.
20. The UTJ then turned, at para. 8 of his determination, to the more general question of whether the FTTJ had failed to engage with the Appellant's particular circumstances. As to that, he acknowledged that "the [FTTJ] may have concentrated to too great an extent on quoting from the jurisprudence relating to article 8 at the expense of a close analysis of the facts". But he held that no error of law had been established. His reasoning is quite short. His essential conclusion appears to have been that the FTT's conclusion that article 8 was not engaged was justified by the fact that the Appellant was an adult and that "there were no special ties of dependency which should bring [him] within the ambit of Article 8". But he makes two additional points – first, that "any disruption in the close family bonds that [the other members of his family] no doubt enjoyed with the Appellant in Sri Lanka" was the consequence of their own decision to come to the United Kingdom; and secondly that there was no evidence before the FTT about the special characteristics of South Asian families.

THE APPEAL

21. The essential basis on which I gave permission to appeal was that I considered that it was arguable that the FTTJ had not correctly stated the law as to the circumstances in which an adult child could be regarded as enjoying family life with his parents and/or siblings; and that if the correct approach had been taken to that question the FTT's decision that article 8 was not engaged was unsustainable on the facts. I acknowledged that that would not matter if the interference with any such rights constituted by the refusal of leave to enter was proportionate, but I was not persuaded by the FTT's very short reasons on the point that he had properly addressed the question.

(A) WERE THE APPELLANT'S ARTICLE 8 RIGHTS ENGAGED ?

22. As regards the law, I can start with Kugathas. In that case the appellant was resisting removal to Sri Lanka on the basis of his continuing family life with his mother, his brother and his married sister, who all lived in Germany He had lived with them for many years in Germany before coming to this country about three years prior to the decision under appeal. The leading judgment was given by Sedley LJ. At para. 14 of his judgment he quoted the statement of the Commission in S v United Kingdom that:

"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 require the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."

Sedley LJ described that as setting out "a proper approach". As regards the meaning of "dependency" in that passage, at para. 17 of his judgment he said:

"Mr Gill QC says that none of this 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."

He held that the appellant's relationship with his family did not at the time of the decision constitute family life for the purpose of article 8, whatever might have been the position while they were still in Germany. He said, at para. 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 found 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 Article 8."

Arden and Simon Brown LJJ delivered judgments agreeing in the result, though they did not explicitly address the question of the correct test.

23. It appears to have been the case that some tribunals have read Kugathas as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage article 8. In Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAT) the Upper Tribunal (Lang J and UTJ Jordan) was critical of that reading. It observed at para. 56 of its determination that "the judgment in Kugathas has been interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts". It continued, at para. 57, to point out that several authorities had recognised that family life may continue between parent and child even after the child has reached the age of majority. So far as the UK authorities are concerned, the Tribunal referred to RP (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 825, Etti-Adegbolu v Secretary of State for the Home Department [2009] EWCA Civ 1319 and Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583. I think I should set out in full its account of the Strasbourg case law at paras. 60-61, which reads:

"60.            Academic commentators on Strasbourg judgments have observed that the Commission has been more cautious in its acceptance of family life between parents and adult children than the Court: Clayton & Tomlinson: The Law of Human Rights  2^nd ed. (2009) paragraph 13.143-144; Liddy: The concept of family life under the ECHR European Human Rights Law Review 1998, 1, 15-25.  Certainly, some of the Court's decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence. For example:

(a)         Boughanemi v France (1996) 22 EHRR 228. The ECtHR held that the deportation of a 34 year old man was an interference with his family life with his parents and siblings although he no longer lived with them.

(b)         Bouchelkia v France (1998) 25 EHRR 686. The ECtHR held that a deportation order interfered with the family life of a 20 year old man living with his parents and siblings.

(c)         Kaya v Germany (Application no 31753/02). The ECtHR held that a young adult who had lived with his parents until he was sent to prison in 1999 still enjoyed family life with them on his deportation in 2001, as he had kept in touch with his family through visits and letters.

61.            Recently, the ECtHR has reviewed the case law, in AA v United Kingdom (Application no 8000/08), finding that a significant factor will be whether or not the adult child has founded a family of his own.  If he is still single and living with his parents, he is likely to enjoy family life with them.  The Court said, at [46]–[49]:

'46. The Court recalls that in Bouchelkia v France, 29 January 1997, §41 Reports of Judgments and Decisions  1997, when considering whether there was an interference with Article 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, step-father and siblings. In Boujlifa v France, 21 October 1997, §36, Reports 1997-VI, 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 five 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, § 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 United Kingdom the Court has declined to find "family life" between an adult child and his parents. Thus in Onur v United Kingdom, no. 27319/07, § 43-45, 17 February 2009, the Court noted that the applicant, aged around 29 years old at the time of his deportation, had not demonstrated the additional amount of dependence normally required to establish "family life" between adult parents and adult children. In A.W. Khan v United Kingdom, no. 47486/06, §32, 12 January 2010. 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, § 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".'"

The Tribunal concluded, at para. 62:

"The different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive.  In our judgment, rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). As Wall LJ explained, in the context of family life between adult siblings:

'We do not think that Advic is authority for the proposition that Article 8 of the Human Rights Convention can never be engaged when the family life it is sought to establish is that between adult siblings living together. In our judgment, the recognition in Advic 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 Article 8 is or is not engaged in a given case."  (Senthuran v Secretary of State for the Home Department [2004] EWCA Civ 950).'"

24. The approach of the Upper Tribunal in Ghising was approved by this Court in R (Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8, [2013] 1 WLR 2546: see the judgment of Lord Dyson MR at para. 46 (p. 2567H).
25. In Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 Sir Stanley Burnton, with whom Richards and Christopher Clarke LJJ agreed, reviewed most of the authorities referred to in Ghising though not, oddly, Ghising itself (or Gurung). He concluded, at para. 24:

"I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8."

26. The position thus is that Sedley LJ's statement of the applicable principles in Kugathas has not been in any sense disapproved – unsurprisingly, since it requires a fact-sensitive approach – but that it requires to be understood in the light of the subsequent case-law helpfully summarised in Ghising.
27. I have quoted at para. 15 above the FTTJ's self-direction as to the relevant principles. It will be seen that there is no reference in that passage to Ghising, which had been decided over a year previously, or indeed to any of the domestic or Strasbourg authorities reviewed in it. Although neither party was represented by counsel, I would have expected a competent immigration consultant and, perhaps still more, a Home Office Presenting Officer to be sufficiently familiar with the relevant case-law to ensure that it was placed before the Tribunal.
28. However, the absence of any reference to Ghising does not mean that the FTTJ's self-direction was wrong, and indeed I do not think that any positive error can be detected in it so far as the actual words go. The real question is how the Judge understood the effect of Kugathas. That can only be established by considering his conclusion in the light of the evidence before him. That exercise is rendered more difficult by the fact that we do not have a clear picture of what that evidence consisted of. We do not have the original application to the ECO or any materials that accompanied it; nor do we have the bundles in the form that they were before the FTT. As we have said, there appear to have been witness statements from the Appellant and his father; but we only have the latter, which unsurprisingly does not address the nature of the Appellant's family life with his mother and sisters in Sri Lanka. The Appellant and his present advisers may not be wholly to blame for this, since it appears that Mr Williams did not retain his full file (and has indeed been criticised by the Office of the Immigration Services Commissioner for that failure) and it is understandable that the Appellant's family have not kept copies themselves. But it is unfortunate that no approach appears to have been made to ask the Home Office to produce whatever was on its own file.
29. In those circumstances our only real guide as to what evidence was before the FTT is the summary that appears in the determination. This does not tell us much. In truth, all that we can be sure that the FTT was told was that the Appellant was aged 20 at the time of the ECO's decision; that he had always lived with his mother and sisters in the family home (subject to the qualification mentioned in para. 19 above); that he was continuing his studies and had not got a job; and that he was financially dependent on remittances from his father. There was the statement in the grounds of appeal about cultural norms in Sri Lanka which I have quoted at para. 6 above, but it is not clear if that was supported in either witness statement. The question must be whether, if that was the totality of the evidence, the FTTJ was entitled to hold that it did not demonstrate that the Appellant enjoyed family life with his mother and his sisters at the time of the ECO's decision.
30. It is not satisfactory to have to proceed on this uncertain basis. But in the end I do not think that the FTT's conclusion was sustainable, and the UT erred in law by failing so to find. Even on the skeletal facts that may have been all that was available to the Judge, the probability must have been that the Appellant enjoyed a family life with his mother and sisters of the kind protected by article 8. It was not simply a matter of "normal emotional ties". The Appellant was a single student, living with his family, who had attained adulthood less than two years previously. Sir Stanley Burnton's comment in Singh quoted at para. 24 above seems to me entirely apposite:

"A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age."

I would if necessary reach that conclusion without reference to "South Asian cultural norms"; but I would be rather surprised if it were not within the knowledge of judges of the Immigration & Asylum Chamber of the First-tier Tribunal whether such norms applied.

31. The shortness of the Judge's reasoning makes it impossible to be sure what led him to reach a conclusion that was unsustainable on the facts, and it is not necessary to decide that question. But I suspect that he was misled by focusing on the position as it was at the date of the hearing before him, by which time the Appellant's mother and sisters had already left, rather than on the position at the date of the ECO's decision. He may also have had an unduly restrictive view of the effect of Kugathas of the kind referred to by the UT in Ghising, which makes it the more regrettable that he was not referred to it. It is also unfortunate that no reference was made to Ghising in the grounds of appeal to the UT.
32. Ms McGahey acknowledged in her oral submissions that many judges would have found on the facts of this case that the Appellant's article 8 rights were engaged. She was not prepared to concede that the Judge's finding to the contrary was not open to him; but in my view that is in fact the case.
33. It may also follow from that conclusion that the article 8 rights of the Appellant's mother and sisters were also engaged; but that was not the focus of the argument before us and I need not consider it further.

(B) WAS THE INTERFERENCE WITH THE APPELLANT'S ARTICLE 8 RIGHTS PROPORTIONATE ?

34. The FTT's error about whether article 8 was engaged will not vitiate his decision if its alternative finding that the refusal of entry clearance was in any event proportionate is one which was open to it in law. Mr Waheed submitted that it was not. His essential submission was that the Judge's reasoning on this point was wholly inadequate. He acknowledges that the single sentence at para. 28 of the determination must be read with the findings at para. 21, but he submits that those findings were directed to the claim under rule 317 and cannot be used to support a claim based on article 8 outside the Rules.
35. I initially saw force in this argument, as appears from my grant of permission. But in the end I am not persuaded that the FTT made any error of law in this part of the determination. While it is correct that the issues under rule 317 and article 8 are not identical, they involve consideration of very similar factors. What the findings at para. 21 of the determination amount to is that while the Appellant had a degree of dependence on his mother and sisters while they lived together as a family, he was able to make the transition to living on his own an independent adult (notwithstanding a degree of financial dependence) albeit somewhat sooner than might otherwise have been the case. Those findings are not challenged as far as they go, and it is not suggested that there was evidence before the FTT of any special impact on the Appellant of being separated from his mother and sisters (indeed, as noted above, we have not been shown the evidence at all). In my view the Judge's findings are an adequate basis for his conclusion that the separation of the family was proportionate in the interests of a consistent system of immigration control. It is not the law, in the Strasbourg jurisprudence any more than under the Immigration Rules, that there is a right for adult children always to join their parents or siblings in their country of residence. Identifying cases where such a right may nevertheless arise under the Convention requires FTT judges to make fact-sensitive assessments in areas where there are no bright lines and where the outcome will sometimes be a sad one in human terms. This Court should not interfere with such assessments unless they are based on a misunderstanding of the law or are plainly wrong. That is not so here.
36. Ms McGahey relied also on the point made by the UT that the immediate reason why the family life in Sri Lanka broke up was that the Appellant's mother and sisters chose to go to the UK to join the father; or, to look at it another way, because the father did not choose to come back to live with them all in Sri Lanka – it must be recalled that he was not a refugee and so did not face persecution if he returned. She did not suggest that that meant that the difference in the decisions taken in the Appellant's case and those of his mother and sisters did not constitute an interference with family life. But she said that it was relevant to the assessment of proportionality. Although this was not a point on which the FTT relied I agree that it is a material consideration. The Respondent's decision gave the family a hard choice; but it was nevertheless a genuine choice.
37. I return to the question of the date as at which the proportionality of the refusal of entry clearance had to be assessed. Mr Waheed did not in fact seek permission to amend his grounds of appeal to rely on the error by the FTT in assessing proportionality as at the date of his decision rather than the ECO's, though he did in the course of his reply make some reference to it. I should be reluctant to allow the Appellant to rely on a point taken for the first time in reply in this Court. But I do not in fact believe that it has been established that the error was material on this aspect of the case. If the Judge had focused on the evidence relating to the position as at the date of the ECO's decision he would have had to consider the impact on the Appellant of having to live on his own on a prospective basis rather than on the basis of how things had turned out; but the difference between the two dates was only some nine months, and there is no reason to suppose that his assessment would in fact have been any different.

CONCLUSION

38. For the reasons given above I believe that the FTT was wrong to find that the Appellant did not enjoy any family life with his mother and sisters so as to engage article 8 of the Convention. But I believe that it was entitled to find that the denial to him of leave to enter the UK together with them was a justifiable interference with that right. The UT thus made no error of law in dismissing his appeal.
39. There are two points which I should mention for completeness.
40. First, Ms McGahey complained that the Appellant had misled the Court in his application for permission to appeal (a) by relying on a witness statement from his father that gave the impression (though she accepted that it did not explicitly say) that he had been granted asylum, which would have meant that it was unlikely that he could return to Sri Lanka, and (b) by failing to tell the Court that his brother's leave to remain had been curtailed, so that the Appellant would not for much longer be the only "stranded sibling". I understand the Respondent's concern about applicants for permission being candid with the Court, but neither of the criticisms advanced by Ms McGahey is unequivocally well-founded, nor do I think that if I had been given fuller or clearer information on either point it would have affected my decision to grant permission. In those circumstances I see no point in my trying to assess whether the Appellant's advisers were in any degree culpable. The general question of the duty of disclosure on applicants for permission to appeal has very recently been authoritatively considered by this Court in R (Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416, and there is no need for any further discussion of the applicable principles.
41. Secondly, the Appellant lodged for the purpose of this appeal a number of new materials, including published reports on South Asian family norms and new witness statements from his family members. As those advising him should have appreciated, that material was not admissible. The only question before us is whether the FTT reached a conclusion that was open to it in law on the evidence that was before it.

Mr Justice Cranston:

42. I agree.

Lord Justice Beatson:

43. I also agree.