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)
DA006002013

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/10/2017

Lord Justice Sales:

1. This is an appeal by the Entry Clearance Officer in Sierra Leone ("the ECO") in relation to an application by the respondent, who resides in Sierra Leone and is a citizen of that country, for entry clearance to come to the United Kingdom to visit members of her extended family here. The respondent says she has no intention of remaining in the United Kingdom at the end of her visit and that the ECO can be confident that she will leave when her entry clearance expires. The ECO is not convinced and submits that there is no good claim for entry clearance to be granted either within the Immigration Rules or outside the Rules on the basis of the respondent's rights under Article 8 of the European Convention on Human Rights (right to respect for family life) and the Human Rights Act 1998.
2. The ECO refused the respondent's application for entry clearance, which decision was affirmed on review. The respondent appealed to the First-tier Tribunal (Judge Tipping) ("the FTT"). The FTT considered further evidence adduced by the respondent and allowed her appeal in a determination promulgated on 1 September 2014. The ECO appealed to the Upper Tribunal (Deputy Upper Tribunal Judge Juss), which dismissed the appeal. The ECO now appeals to this court.

Factual background

3. The respondent is a young woman, a citizen of and resident in Sierra Leone, born in 1991. She is the daughter of Edmound Kopoi.
4. Edmound is the uncle of Emmanuel Kopoi. Edmound and the other members of Emmanuel's family live in Sierra Leone.
5. Edmound played an important part in Emmanuel's life. He paid the fee for Emmanuel to sit his O-level exams, which otherwise Emmanuel could not have done, and looked after him in Freetown where he attended college. In this way Emmanuel secured an education in Sierra Leone and went on to work for the United Nations. While working in Nepal in 2007 Emmanuel met Rebekah Wilson and in 2008 they were married in the UK, where they now reside. Ms Wilson is a British citizen. She is a barrister in practice in London. Emmanuel has indefinite leave to remain in the UK. They have two children, born in 2009 and 2012 ("the children").
6. Emmanuel and Ms Wilson want their children to have and develop a relationship with their paternal family in Sierra Leone. The older child was taken to Sierra Leone on holiday in 2011 to meet family members, including the respondent. Emmanuel and Ms Wilson speak regularly to family members in Sierra Leone and talk about them to the children.
7. On 24 October 2013, the respondent made an application for entry clearance to come to the UK as a family visitor to stay with Emmanuel and Ms Wilson for three weeks, with Emmanuel and Ms Wilson acting as her sponsors. The application was considered by the ECO under paragraph 41 of the Immigration Rules, as it stood at the relevant time, which included requirements that the applicant was genuinely seeking entry as a visitor for a limited period as stated by her and that she intended to leave the UK at the end of that period.
8. In a decision dated 30 October 2013, the ECO refused the respondent's application because he was not satisfied that she met these requirements. The respondent had just finished college, had not provided good evidence that she had enrolled on a meaningful course of study in Sierra Leone, was not employed and had almost no money of her own, being dependent on her father and her sponsors.
9. The respondent requested a review of this decision by an Entry Clearance Manager ("the ECM"). The grounds for review maintained that the respondent was a genuine visitor and also referred to the rights of the children under Article 8, stating "It is a breach of the rights of the children of the sponsors right to family life to deny them access to their paternal family members".
10. On the review, the ECM made a decision dated 26 February 2014. In the ECM's view the position remained that the respondent was awaiting her final year exam results, it was unclear what her future plans were now that she had completed her studies in Sierra Leone and she provided no evidence that she had financial resources of her own. The ECM therefore considered that the ECO's concerns had not been met. The ECM also considered the claim that the ECO's decision breached the rights of the children to have access to family members on their paternal side. The ECM was not satisfied that family life existed between the children and those family members in Sierra Leone, and even if it did he considered that the interference with it would be justified by the legitimate need to maintain effective immigration controls and would be proportionate, so that there would be no violation of Article 8. The ECM affirmed the ECO's decision.
11. The respondent appealed to the FTT. By the time of the appeal hearing, the respondent had received and accepted an offer of employment as an executive trainee with GTBank in Sierra Leone. The FTT took this into account as evidence of the situation as at the date of the application, confirming that the respondent had completed her studies as she claimed and had indeed been seeking work in Sierra Leone. It was submitted that the respondent had every reason to return to Sierra Leone at the end of her proposed visit, as all her immediate family remained there and she had a job there. Ms Wilson gave evidence at the hearing, saying that she would not countenance any breach of immigration law by the respondent. The FTT found on a balance of probabilities that the respondent was a genuine visitor who intended to leave at the end of her visit and allowed her appeal on immigration grounds on the basis of the Immigration Rule. The Article 8 argument for the children was not relied upon or addressed.
12. The ECO appealed to the Upper Tribunal. It was now pointed out by the ECO that the respondent's appeal to the FTT could only be made on human rights grounds or on race discrimination grounds: section 88A(3) of the Nationality, Immigration and Asylum Act 2002, which had changed the law in this respect with effect from mid-2013. This point had been overlooked at the time of the FTT hearing. However, it meant that the FTT, in allowing the appeal on immigration grounds rather than human rights grounds, had acted without jurisdiction. It should have made findings in relation to the Article 8 (family life) ground which had been raised in the request for review by the ECM and in the appeal to the FTT.
13. The Upper Tribunal found that the FTT had erred in law in its decision but dismissed the appeal, on the grounds that the error was not material. It was clear that the FTT had accepted the evidence given by Ms Wilson in relation to the Article 8 issue without needing to make any findings of fact itself ([13]); family life clearly existed between both sides of relatives on the basis of Ms Wilson's account, which reflected the facts as set out at paras. 5-6 above, and which the Upper Tribunal characterised as a "commitment of family members" which "runs deep and is of a special nature" ([14]-[16]); although no reference was made in Ms Wilson's evidence to the Ebola outbreak in Sierra Leone, she did say that taking the children to Sierra Leone would have a "potentially dangerous impact on their welfare" ([17]) – the inference being, I think, that for them to have contact with the respondent in the interests of furthering their rights under Article 8, the respondent would need to come to the UK to visit; and the FTT had been entitled to accept the assurances of Ms Wilson regarding the bona fides of the respondent ([18]). The Upper Tribunal set out its decision at [19] as follows:

"In the circumstances, the judge was bound to have found that, not only did family life exist, but that the refusal of a visit visa to [the respondent] was going to engage Article 8 of the Human Rights Act, and although it was in accordance with the law (because the law has changed in mid-2013) , and was even arguably necessary in a democratic society in the interests of the rights and freedoms of others, but it was not an interference that was proportionate to the legitimate public end that was sought to be achieved, because the maintenance of family life in the particular circumstances of this case was an important consideration, especially for children of this young age."

14. The Secretary of State appeals against this decision primarily on the ground that, contrary to the Upper Tribunal's view, there was no evidence capable of supporting a finding that the relationship between the respondent and her relatives in the UK amounted to family life for the purposes of Article 8.

Discussion

15. Article 8 provides:

"(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."

16. In my judgment, the appeal should be allowed. The evidence adduced on behalf of the respondent was very far from establishing that she enjoyed "family life" with Emmanuel, Ms Wilson and the children in the UK within the meaning of that term in Article 8, or that conversely any of them enjoyed family life with her (see Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 AC 115). Accordingly, the decision of the ECO involved no failure of respect for anyone's family life and hence there was no interference with the respondent's rights (or anyone else's rights) under Article 8(1) which required justification under Article 8(2). Further, even if there had been "family life" between them, there would still have been no obligation under Article 8 to grant entry clearance to the respondent.
17. The leading domestic authority on the ambit of "family life" for the purposes of Article 8 is the well-known decision of this court in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 31. The court found that a single man of 38 years old who had lived in the UK since 1999 did not enjoy "family life" with his mother, brother and sister, who were living in Germany as refugees. At para. [14] Sedley LJ accepted as a proper approach the guidance given by the European Commission for Human Rights in its decision in S v United Kingdom (1984) 40 DR 196, at 198:

"Generally, the protection of family life under Article 8 involves cohabiting dependents, 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."

He held that there is not an absolute requirement of dependency in an economic sense for "family life" to exist, but that it is necessary for there to be real, committed or effective support between family members in order to show that "family life" exists ([17]); "neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together", sufficient ([19]); and the natural tie between a parent and an infant is probably a special case in which there is no need to show that there is a demonstrable measure of support ([18]).

18. The judgments of Arden LJ and Simon Brown LJ were to similar effect. Arden LJ also relied on S v United Kingdom as good authority and held that there is no presumption that a person has a family life, even with members of his immediate family ([24]) and that family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties, such as ties of dependency ([25]).
19. Kugathas remains good law: see e.g. R (Britcits) v Secretary of State for the Home Department [2017] EWCA Civ 368, [61] and [74] (Sir Terence Etherton MR), [82] (Davis LJ) and [86] (Sales LJ). As Sir Terence Etherton MR pithily summarised the position at [74], in order for family life within the meaning of Article 8(1) to be found to exist, "There must be something more than normal emotional ties".
20. In my view, by no stretch of the imagination can the present case be brought within the principles set out in these authorities. Unlike the position in Kugathas, the respondent is not even a member of Emmanuel's immediate family and her claim to fall within the scope of family life in Article 8(1) is weaker than that of the claimant in that case. Clearly the respondent has no dependency upon Emmanuel, Ms Wilson and the children, nor is she the beneficiary of any established pattern of support provided to her by them. Her case thus has to be distinguished from Boyle v United Kingdom (1994) 19 EHRR 179, in which the European Commission of Human Rights found that an uncle enjoyed family life with his nephew where he had frequent contact with the nephew from the time of his birth, spent considerable time with him, lived in close proximity and often looked after him at weekends, and was properly described as "a good father figure" to him ([44]). No doubt in the present case there are emotional ties felt on both sides, but there is nothing to indicate that these go beyond the normal emotional ties experienced between family members in very many families.
21. The same can be said looking at the picture from the point of view of Emmanuel, Ms Wilson and the children. The perspective of the children was particularly emphasised in the submissions made to the ECM, the FTT and the Upper Tribunal and in the submissions made to us by Mr Yeo for the respondent. However, they are plainly in no relationship of dependency of any kind at all in respect of the respondent. It may be that some emotional ties exist between them, but it has to be said that in the case of the children they appear to be very weak ties. Only the older child has actually met the respondent, on a visit to Sierra Leone aged about two, and it must be highly doubtful that he remembers that. The sense of emotional connection the children have with the respondent is considerably weaker than the sense of emotional connection between family members in the Kugathas case itself, which was found not to constitute family life for the purposes of Article 8.
22. In my view, there plainly is no existing "family life" between the respondent on the one hand and any of Emmanuel, Ms Wilson and the children on the other. The Upper Tribunal was wrong to hold that there is.
23. Mr Yeo sought to suggest that the ECO was under some sort of obligation to grant the respondent leave to enter so that she and the children could seek to develop a relationship together. No authority was cited which lent any support to such a contention. If family life does not exist, it is difficult to see how a state interferes with it by declining to grant leave to someone to enter the jurisdiction to try to bring it into existence. Nor could it be said that any implied positive obligation arises under Article 8 to grant leave to enter to the respondent to come to try to develop a more substantial relationship with the children in order to try to create a family life which does not currently exist. That would be an implied right of extraordinary width affecting the ordinary right of states to control their borders in a profound and far-reaching way: it clearly cannot be spelled out of the terms of Article 8(1).
24. The basic position is that "The duty imposed by Article 8 [right of respect for family life] cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country": Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para. 68. Still less could it be said that Article 8 affords the respondent, who is not a spouse or member of the immediate family, a right to come to the UK to visit Emmanuel, Ms Wilson and the children.
25. The principle stated by the European Court of Human Rights in Abdulaziz is applied in cases concerning claims for family reunification involving children: see e.g. Sen v Netherlands (2001) 36 EHRR 7, in which the applicable principles were re-affirmed as follows at para. 36:

"(a) The extent of a State's obligation to admit to its territory relatives of settled migrants will vary according to the particular circumstances of the persons involved and the general interest.

(b) 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.

(c) Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory."

26. In the Sen case the Court considered an application for a child left in Turkey by her Turkish parents to gain entry clearance to come to live with them in the Netherlands. The Court was concerned first to identify whether the bond uniting the applicants amounted to "family life". It concluded that it did so, on the basis that the child in question, who was a minor aged 9 at the relevant time, was born of a marital union and therefore was ipso jure part of that relationship: para. 28. In the present case, however, none of the relevant individuals can rely on such a relationship between themselves at this first stage of the analysis. Instead, they would have to point to something special in the factual context of their case which shows that "family life" exists between them despite the comparative remoteness of their relationship, but they are unable to do so.
27. Next, at paras. 29ff, the Court considered whether there had been an interference with the exercise of the applicants' right to respect for their "family life" or a failure to comply with a positive obligation under Article 8, the principles applicable to such an obligation being similar to those governing negative obligations (para. 31). For the purpose of this stage of the analysis, having stated the general principles at para. 36, set out above, the Court stated that it took into consideration "the age of the children concerned, their situation in their country of origin and their degree of dependence on their parents" (para. 37).
28. On the particular facts of the Sen case, the Court found that the refusal of entry clearance for the child involved a breach of Article 8, distinguishing in that regard another family reunification case involving a child who was a minor and his parent in which no violation of Article 8 had been found (Ahmut v Netherlands (1997) 24 EHRR 62). However, the principles identified by the Court in Sen and the factors it treated as relevant point strongly against there being any violation of Article 8 in the present case, even if it were possible to say that there was "family life" in existence in a relevant sense. For instance, if one focuses on the children, although they are very young they are not dependent on the respondent and they are already safely settled in a secure family life with their parents in the UK. There is no pressing Article 8 interest of theirs which means that, as a matter of "the fair balance which has to be struck between the competing interests of the individual and the community as a whole" (Sen, para. 31), the general principles identified in para. 36, set out above, should be treated as overridden so that the respondent must be granted leave to enter.
29. In general terms, I consider that the Upper Tribunal (Mr Justice McCloskey, President, and UT Judge Perkins) in Mostofa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) was correct to observe at [24] that "… it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1)"; and I think the Upper Tribunal made pertinent comments about this when it continued: "In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together" (albeit I would wish to reserve my opinion whether even these comments might have expressed the position too widely, in light of the principle stated in Abdulaziz). Clearly, on this approach, the respondent's case does not fall within the scope of Article 8(1).
30. In my view, the shortness of the proposed visit in the present case is a yet further indication that the refusal of leave to enter did not involve any want of respect for anyone's family life for the purposes of Article 8. A three week visit would not involve a significant contribution to "family life" in the sense in which that term is used in Article 8. Of course, it would often be nice for family members to meet up and visit in this way. But a short visit of this kind will not establish a relationship between any of the individuals concerned of support going beyond normal emotional ties, even if there were a positive obligation under Article 8 (which there is not) to allow a person to enter the UK to try to develop a "family life" which does not currently exist.

Conclusion

31. For the reasons given above, I would allow this appeal.
32. As a post-script it is perhaps worth referring to the wider picture. By virtue of section 88A of the 2002 Act, the respondent had no right of appeal to the FTT on the simple question of whether she did in fact comply with the requirements of the version of paragraph 41 of the Immigration Rules which was applicable to her application for leave to enter, i.e. whether she was a genuine visitor who would leave at the end of her visit. If she was dissatisfied with the ECO's decision on that question, she could instead have applied for judicial review in relation to it when the ECM affirmed it after review. But the argument on such a judicial review would have had to be directed to whether the ECO's assessment on the facts was rationally open to him on the evidence before him. This contrasts with the position on an appeal to the FTT, in which it is open to the FTT to make its own findings of fact on the evidence and it is not limited to asking whether the administrative decision-maker's assessment of the facts was rational or not. In the present case, for example, whilst the FTT was entitled to find on the evidence before it that the respondent was a genuine visitor, I think the respondent might have had difficulty in showing that the ECO reached an irrational conclusion that she was not, on the evidence before him. The evidence available gave scope for people rationally to differ regarding their assessment of the facts.

Lord Justice Burnett:

33. I agree.

Lady Justice Gloster DBE:

34. I also agree.