|Judgments - Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department
HOUSE OF LORDS
 UKHL 39
on appeal from:  EWCA Civ 828
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Richard Drabble QC
(Instructed by Irving & Co )
Monica Carss-Frisk QC
(Instructed by Treasury Solicitor )
9 APRIL 2008
WEDNESDAY 25 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department (Respondent)
 UKHL 39
LORD BINGHAM OF CORNHILL
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD
The three successive appeal hearings below
"14. So far as the article 8 claim is concerned, we take the view that the adjudicator has placed too much emphasis on the position of the respondent's mother and siblings. It is not disputed that this is a close family with a not inconsiderable amount of inter-dependence, but it has to be borne in mind that it is the position of the respondent with regard to article 8 that is being considered and not that of his mother and siblings. In our view, the approach of the adjudicator . . . is flawed to the extent that it places considerable importance on the position of other members of the respondent's family."
"Under section 65 of [the 1999 Act], the right of appeal on human rights grounds requires consideration of the alleged breach of the appellant's human rights. In the present case this required the adjudicator to concentrate on the effects of removal on the appellant. True it is, as Jack J said in R (AC) v Immigration Appeal Tribunal  EWHC 389 (Admin)  INLR 507, the effect on others might have an effect on an appellant, nonetheless it is the consequence to the appellant which is the relevant consequence. In the context of a merits appeal, which this was, the tribunal was entitled to conclude that the adjudicator had allowed his judgment to be affected unduly by the effect of removal on the remainder of the family in particular his mother. Further, the adjudicator does not suggest that the effect on the family, let alone the appellant, amounted to an exceptional circumstance."
"65(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision . . .
(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground."
"82(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator."
"84(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds . . . (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 . . . as being incompatible with the appellant's Convention rights; . . . (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision . . . would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
The rival arguments
The appellant submits that the legislation allows, indeed requires, the appellate authorities, in determining whether the appellant's article 8 rights have been breached, to take into account the effect of his proposed removal upon all the members of his family unit. Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims.
The Secretary of State submits that the wording of the legislation is clear and restrictive. Both section 65 of the 1999 Act and section 84 of the 2002 Act refer repeatedly to the appellant's human rights and to no one else's. The appellate authorities must decide whether his human rights would be breached, whether removal would be compatible with his Convention rights. (It is not contended that there is any material difference between the two Acts.)
The domestic case law
"In an appeal under section 65, therefore, there is no obligation to take into account claims made about the human rights of individuals other than the appellant or individuals who have not themselves been the subject of a decision which is under appeal. Such matters (save in so far as they relate to the human rights of the appellant himself) are irrelevant to the matter under consideration.
. . .[A]nybody else who claims that, in making or proposing to carry out the decision a public authority will breach his or her human rights, may bring proceedings under section 7(1)(a) of the 1998 Act."
26. AC both on its facts and by reference to the course of proceedings there seems to me a most instructive case. AC was a Turkish woman who came here clandestinely in 1995 and claimed asylum. The next month she married her Turkish fiancée and the following year had a daughter, S. The marriage broke down and two years later AC committed a violent assault for which she was sentenced to ten years imprisonment (reduced on appeal to eight) and recommended for deportation. If deported it was recognised that direct face to face contact between AC and S (then aged about seven) would in all likelihood be lost for some ten years.
"There was some debate before us as to what [Jack J's] judgment decided and, in any event, as to what the true position in law is" (para 16).
"We regard it as clear that the effect of section 65 is to require the adjudicator and tribunal to decide whether or not the decision breaches the appellant's human rights and not whether it breaches the rights of others who are not appellants. . . . that other person has the ability, if a victim, to bring proceedings in the Administrative Court under section 7 of the 1988 Act. It may be cumbersome, but it avoids an appellant making claims relating to someone else who may be unaware of what is being said, or who may disagree with it. A child of divorced or separated parents may be in a particularly difficult position in this regard" (para 17).
"We also accept . . . that although the right to family life and the effective interference [in] it is examined, under section 65, from the viewpoint of the appellant, the impact of separation on another may cause distress or anxiety to the appellant and that indirect impact on the appellant should be taken into account. It is right to recognise that although some family relationships may involve complete reciprocity, others, and parent-child relationships are the obvious example, may be very different depending upon the person from whose viewpoint the matter is examined" (para 18).
"We make it clear that we have not considered the position from the viewpoint of S. We recognise that the decision in this case affects her rights and interests, but for the reasons which we have given we do not bring those into the balance in this decision" (para 76).
That judgment had in fact been foreshadowed just two months previously by the Immigration Appeal Tribunal's decision (again presided over by Ouseley J) in SS (ECO - article 8) Malaysia v Secretary of State for the Home Department  Imm AR 153 In that case too, having expressed doubts as to the effect of Jack J's judgment in AC and said that the tribunal was bound by the starred decision in Kehinde, Ouseley J said that section 65 required the narrow approach to be adopted even though that might result in other family members having to challenge removal decisions under section 7 of the 1998 Act.
"The parties are in agreement that the appellant's article 8 appeal requires re-examination by a freshly constituted tribunal. There was only one appellant before the IAT and there is only one family life. A proper assessment of the proportionality of the interference with the family life requires an assessment of the impact on the child of loss of contact with her parent. Although a 'third party', the child's right to respect for family life is thereby a relevant factor in the assessment of proportionality."
Your Lordships were not told the final outcome of AC's case.
33. Miao v Secretary of State for the Home Department  INLR 473 concerned a husband and wife seeking to remain here to care for the husband's father (settled as a refugee) who suffered chronic depression and presented a high suicide risk. The appeal succeeded. Although in argument the Crown relied on the Court of Appeal's decision in the present case, the issue was not mentioned in the judgment.
34. NG (Pakistan) v Secretary of State for the Home Department  EWCA Civ 1543 concerned a Pakistani mother, with two young children, who was to be deported after separating from her husband, a British citizen of Pakistani origin. Contact between father and children would thereby be broken. Although it may well not have been decisive the Court of Appeal stated at para 9:
"There was no prospect of the father actually caring for the children. The children would travel with their mother if she were removed. It was the mother's article 8 rights that were under scrutiny, not the father's or even the children's (see the decision of the IAT in Kehinde)."
35. AB (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1302 concerned a Jamaican woman who overstayed here, was thereafter joined by her two daughters, then met and married a British citizen who had lived here all his life. Allowing the appeal against mother's deportation the Court of Appeal said at para 20:
"In substance, albeit not in form, [the husband] was a party to the proceedings. It was as much his marriage as the appellant's which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was now critical. From Strasbourg's point of view, his Convention rights were as fully engaged as hers. He was entitled to something better than the cavalier treatment he received . . . It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact." (Sedley LJ)
Again no mention was made of the present issue.
The Strasbourg case law
38. Sezen v Netherlands (2006) 43 EHRR 30 is a case in point. Noting that the case concerned "a functioning family unit where the parents and children are living together", para 49 of the judgment continued:
"The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by article 8 of the Convention and that to split up a family is an interference of a very serious order. Having regard to its finding . . . that the second applicant and the children cannot be expected to follow the first applicant to Turkey, the effect of the family being split up therefore remains the same [as when a 10 year exclusion order remained in force] as long as the first applicant continues to be denied the right to reside in the Netherlands."
"[R]elationships between adults do not necessarily benefit from protection under article 8 of the Convention unless the existence of additional elements of dependence, other than normal emotional ties, can be proven."
On the adjudicator's findings of fact, such additional elements of dependence can properly be said to exist in the present case.
"[T]he main importance of the [Strasbourg] case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant."