QUEEN'S BENCH DIVISION
B e f o r e :
| MARTIN CEBEKHULA MTHOKOZISI
|- and -
|Secretary of State for the Home Department
Miss Philippa Whipple (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 5 November 2004
Crown Copyright ©
Mr Justice OWEN :
"It is certainly arguable that the Adjudicator has perhaps not given sufficient weight to the age of the applicant and the history of the case. Nevertheless accepting the applicant's case at its best, it is the view of the Tribunal that the conclusions of the Adjudicator were correct and reasonable."
THE BACKGROUND TO THE APPLICATION
"Martin was extremely close to Mrs Croll and regarded her as his mother. He lived with Mrs Croll, Nigel Keeble (her nephew) and Emmanuel Niyitegeka (another foster son) from December 1996 until January 2000. The length of time spent together and their mutual love and respect has meant that the three boys regarded themselves as brothers . Anita Keeble (Nigel's elder sister) visited the family frequently and also regards Martin as her brother Anita's son and Nigel's daughter regard Martin as their uncle. Mrs E. Gravestock, Mrs Croll's daughter, also thinks of Martin as family and indeed regards him as a 'last link to my mother' All of these people constitute Martin's immediate family regardless of the lack of blood ties."
"Martin arrived in the United Kingdom as an Unaccompanied Minor in January 1996 from Uganda. Shortly after his arrival he was accommodated by London Borough of Hillingdon Social Services under Section 20 of the Children's Act 1989. Martin was initially placed with foster carers and moved to semi-independent living in summer 2001. Martin is close to his foster carers and does still keep in touch with them.
Martin attended Uxbridge High School for 5 years. All of his school reports describe him as a very dedicated student who related well to his peers. Teachers described him as a model student, who was polite and well mannered. Martin achieved 11 GCSE's all at the C and above as well as being voted Sports Personality of the year. Martin remained at Uxbridge High School to study for 3 A levels. He was predicted good grades and a career in medicine. Martin's performance deteriorated in the last six months prior to his exam due to anxiety and worry regarding his asylum application. Furthermore the uncertainty of his asylum status has resulted in Martin not being able to plan his future, as partaking in higher education is dependent on immigration status. Martin achieved 3 A levels; chemistry D, biology E, and maths E.
Although not being Martin's first choice he is currently doing a course in IT.
Martin has lived in the United Kingdom for 7 years and is fully integrated into British society and lifestyles. Considering that Martin was only 13 years old when arriving in the United Kingdom, he has spent most of his teenage years here and identifies with British Culture and the British way of life.
Martin used the International Red Cross tracing service to try to find relatives in Uganda, without any success. The prospect of moving back to a country, which is almost unknown to him, has caused Martin a great deal of distress.
Martin is a very pleasant and intelligent young person who has a lot to offer to British Society."
The 'family life' issue
"It is accepted that a relationship with foster parents is capable of amounting to family life, depending on the extent and existence of close personal ties. However your client is now 21 years old and is no longer living with foster parents. There is evidence that he remains in contact with members of his former foster families, but there is no dependency between him and any person(s) by whom he was formerly fostered. He no longer lives with his fosterers. Article 8 was in fact first raised on 21st March 2003 (in the letter from the Refugee Legal Centre on your client's behalf), by which time your client was 20 years old, and had been out of foster care for almost two years. It is therefore not accepted that your client's relationship as an adult with his former foster families amounts to family life. The Court of Appeal in Kugathas said that:
"because there is no presumption of family life a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than the normal emotional ties ..."
it is therefore only in exceptional cases that family life will be established between an adult child and his parents. Your client's evidence does not demonstrate anything more than normal emotional ties with his former foster families here."
"14. Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the Report, the Commission said:
"generally the protection of family life under Article 8 involves co-habiting 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."
This, while it is not black-letter law, sets out what I would accept is a proper approach.
17. Mr Gill 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.
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 demonstrable measure of support: see Boughanemi v France  22 EHRR 228 at paragraph 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 with 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 Article 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 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  7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice-versa "
The Issue of Delay
"3.3. Consideration of applications
Applications involving unaccompanied children should be handled sensitively and cautiously at all stages it will rarely be acceptable to hold an application from an unaccompanied child without any action being taken on it for longer than six months.
3.5. Reception arrangements and return ability
Ministers have agreed that no unaccompanied child will be removed from the UK unless we are satisfied that adequate reception and care arrangements are in place in the country to which s/he is to be removed . If the asylum application is to be refused and it is impossible to make satisfactory reception arrangements for an applicant who is still under 18 the presumption should generally be to grant exceptional leave to enter or remain."
"11. It will be clear from what I have said earlier in this judgment that this case turns on the human rights issue. The asylum arguments have been overtaken by events. It is equally clear that the removal of the appellant from this country would give rise to an interference with his right to respect for family life under Article 8. That, of course, does not mean that there is necessarily a breach of that Article. Such an interference may be justified by the public authority in question, as provided for by paragraph 2 of the Article. There is no issue as to the decision in the present case being one taken in accordance with the law and in pursuance of a legitimate objective, namely the maintenance of control over immigration. But what is in issue is whether the decision met the requirement of proportionality, so that it struck a fair balance between that legitimate objective and the appellant's right under Article 8.
12. The legal principles concerning the approach to be adopted by the Courts on proportionality on cases such as this have been considered on a number of occasions. The House of Lords in R (Daly) v Secretary of State for the Home Department  UKHL26;  2AC532 has made it clear that proportionality requires the Court to do more than merely apply the traditional Wednesbury test. While its task is still that of review, rather than one of remaking the decision on its merits, the review will, when Human Rights issues are involved, be a more intensive one. As Lord Steyn said at paragraph 27 of Daly:
"First, the doctrine of proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in so much as it may require attention to be directed to the relevant weight accorded to interests and considerations".
But it needs to be borne in mind that what both Lord Steyn (at para.28) and Lord Cooke of Thornton (at para. 32) emphasised was that the intensity of review depends on the subject matter. In some areas of decision-making, the Courts will allow the decision-maker a greater degree of deference or discretion than in others. I myself would endorse the principles enunciated by Laws LJ in International Transport Roth GmbH v Secretary of State for the Home Department  EWCA Civ 158;  3 WLR 44 at paras. 83 – 87, where he sought to give guidance on how the degree of deference was to be determined in various situations. His third principle (para. 85) was that:
"greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the Constitutional responsibility of the Courts."
He went on to express the view, with which I concur, that the former category includes the security of the State's orders, including immigration control, para. 86.
13. That is a standpoint which had been adopted by this Court in a number of cases involving immigration control, such as Mahmood and Isiko. In short, therefore, in deciding whether or not the Secretary of State has struck the balance fairly between this appellant's right to respect for his family life and the proper maintenance of immigration control, this Court will recognise that the Secretary of State is to be allowed a significant area of judgment. He is entitled to a significant margin of discretion before the Court will conclude that he has gone wrong in the relative weight which he has attached to the conflicting interests. I therefore approach the facts of this case and the IAT decision with those principles in mind.
16. I fully accept that some weight was to be attached in the decision-making process to the fact that the appellant began his relationship with BF and married her while his status in this country was underdetermined. This is a relevant factor, and not an unimportant one: see Abdul Aziz v United Kingdom  7 EHRR 471. But the whole balancing exercise was conducted without any weight being attached to the fact that the policy being put into one side of the scales would not have been applicable at all but for the delay on the part of the Home Office. While it may be uncertain when the appellant would normally have been granted refugee status or exceptional leave to remain, it is unfair that he should suffer because of an uncertainty arising from the Home Office's failings. Nor can it be said that allowing him to apply in-country would encourage others to exploit the established procedures. To require the appellant now to leave the United Kingdom and to apply from Kosovo for leave to enter seems to me to be clearly disproportionate and to fall outside the generous margin of discretion to be afforded in such cases to the respondent, who does not appear to have reflected adequately, if at all, the significance of his department's delay in the present case."