ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
UTJ Clive Lane
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
MR JUSTICE CRANSTON
| PT (SRI LANKA)
|- and -
|ENTRY CLEARANCE OFFICER, CHENNAI
Ms Cathryn McGahey QC (instructed by The Government Legal Department) for the Respondent
Hearing date: 7 April 2016
Crown Copyright ©
Lord Justice Underhill :
"Culturally, regardless of their age, children of Sri Lankan families live with their parents until they enter into marriage. The Appellant is single."
THE DECISION OF THE FTT
"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  UKHL 32,  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.)
"(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.
"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.
"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."
(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  EWCA Civ 31,  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
(A) WERE THE APPELLANT'S ARTICLE 8 RIGHTS ENGAGED ?
"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.
"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 2nd 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. 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  EWCA Civ 950).'"
"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."
"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.
(B) WAS THE INTERFERENCE WITH THE APPELLANT'S ARTICLE 8 RIGHTS PROPORTIONATE ?
Mr Justice Cranston:
Lord Justice Beatson: