United Kingdom Asylum and Immigration Tribunal

CB v Secretary of State for the Home Department [2002] UKIAT 01176

CC-32182-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26/03/2002

Date Determination notified: 19 April 2002

Before
The President, The Hon. Mr Justice Collins Mrs. E. Morton Mr. G. J. Brown JP
Between

 

Cafer BAKIR	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Mr. A. Sheikh, HOPO for the Appellant Miss J. Malik, Counsel for the Respondent
DETERMINATION AND REASONS
1. The respondent to this appeal is an ethnic Kurd from Turkey. He was born on 20 September 1980. He arrived in the United Kingdom in February 2000 and claimed asylum. In March 2001 he was eventually interviewed and his claim was rejected. His appeal to an adjudicator (Ms. M. S. Beg) was heard on 14 November 2001. She dismissed his appeal against the refusal of asylum but allowed his claim that to return him would breach Article 8 of the European Convention on Human Rights. This was because he had established a family life in the United Kingdom and the interference with that family life caused by a return to Turkey was not justified by the need for immigration control. Against that decision the appellant has been granted leave to appeal. The only ground relied on was that the adjudicator had applied the wrong standard of proof.
2. Since there is no appeal against the dismissal of the asylum appeal and the adjudicator's conclusion that the respondent would not run any risk of ill-treatment if returned, it is unnecessary to set out the background to the respondent's claim in any detail. He asserted that he was a supporter of HADEP, which he equated to the PKK, and that he had been detained and tortured on at least two occasions because of his political activities. He had received his call-up papers but, as a result of leaving Turkey, he would be treated as a draft evader: in any event, as a Kurd, he had an objection to military service.
3. The adjudicator for good reason did not believe the respondent's account of detention and ill-treatment. He was at most a low level supporter of HADEP in whom the authorities had had and would have no adverse interest. Although his parents and three of his sisters still live in Turkey, he has three siblings with whom he has been living in the United Kingdom. His eldest brother, Ali, has British citizenship. He is now 33 and has been in the United Kingdom for over 10 years. He originally claimed asylum. His brother, Cuma, who is 31, has exceptional leave to remain here until July 2003, and his sister, Beser, who is 26, has a similar leave until April 2003. Cuma and Beser had claimed but were refused asylum. In addition, he has two cousins who live here. His three sisters who remain in Turkey are, we are told, now married (all are older than him), although two of them apparently still live in the same village as his parents.
4. We have not been told why Cuma and Beser have been granted exceptional leave to remain until next year despite the refusal of their asylum claims. Nor do we have any means of knowing whether when this exceptional leave expires a decision will be made to remove either of them. But the fact that the respondent had been living with them and that they had leave to remain led the adjudicator to state as follows:

"There is clearly in existence a private and family life for him [respondent]. I find that to send him back to Turkey would be an interference in that private or family life. Focus on lack of respect rather than interference in family life has been the approach of the Strasbourg Court. There has been no argument put forward on behalf of the [respondent] that the Secretary of State's decision has not been in accordance with the law".

5. The last sentence in the passage cited is curious since the appeal could only have been allowed if the decision to return was not in accordance with the law because it breached Article 8, which is, of course, incorporated into domestic law by the Human Rights Act 1998. It may be that the adjudicator was intending to refer only to Article 8(2) and was treating the expression as not involving proportionality. However, it does not matter since the adjudicator goes on to consider whether to return the respondent was proportionate so that Article 8(2) prevented any breach. After referring to the decision of the Court of Appeal in Mahmood v Secretary of State for the Home Department [200111 W.L.R. 840, she says this:

"Removal of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided there are no insurmountable obstacle (sic) to the family living together in the country of origin of the members excluded, even where this involves a degree of hardship for some or all members of the family. Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state as the circumstances are such that it is not reasonable to expect other members of the family to follow that member expelled. I find that in the case before me this [respondent] has been in the United Kingdom since 6 February 2000. Since that time, the [respondent] has been living with his siblings who have either indefinite leave to remain or exceptional leave to remain. The [respondent's] parents remain in Turkey. I find that the [respondent's) closeness to his siblings effectively means that his removal from them would be an interference with his family life. It would be extremely difficult for the [appellant's] siblings to go and visit him in Turkey because of the basis on which they came to the United Kingdom".

6. The appellant did not in his notice of appeal challenge the finding that a family or private life existed for the respondent and would be interfered with by removing him. In one sense, anyone who has lived for a time with persons, whether related or not, can be said to have a family life. Equally, anyone's private life can be said to be interfered with if he is required to do something he is unwilling to do. But Article 8 is not breached unless any interference with that life falls outside what is permitted by Article 8(2).
7. Family life will usually involve a permanent (or intended permanent) relationship between persons of the same or opposite sex and any dependant children. It will extend to single parent families. It can extend beyond that, for example, to relationships between adult siblings, but such an extension would be most unusual. The ties must be strong enough to establish that the relationship constitutes family life so that it would be unreasonable to expect those living together as a family to be separated. And the situation must be considered at the date of the decision under appeal: see 1999 Act s.77(4).
8. It follows that we are far from persuaded that the adjudicator was correct to accept that there was in the circumstances a family life within the meaning of Article 8. However, the appellant did not challenge that finding in the grounds of appeal and did not give notice in accordance with Rule 21 of the Procedure Rules and the tribunal's standard directions of any intention to seek to vary the grounds to argue the point. We are therefore unable to go behind the finding albeit we doubt that it was justified on the facts of this case.
9. The adjudicator's reference to the need for there to be `no unsurmountable obstacle to the family living together in the country of origin if the family members excluded' comes from the judgment of the Master of the Rolls in Mahmood. At Paragraph 55 he sets out his conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration control. The adjudicator has quoted number 3. It is to be noted that, helpful though they are, these conclusions are not specifically adopted by the two other members of the court (Laws and May LJJ). The test to be applied is whether in all the circumstances it is reasonable to require the family members to leave the country, that is to say, whether the interference is proportional.
10. It is always necessary to consider the facts of a particular case. Lord Phillip's conclusions are not requirements which have always to be met. Naturally, it would usually be the case that, if there were insurmountable obstacles to the continuation of family life out of the United Kingdom, removal would not be reasonable. Even if the respondent has a family life here, it is one which has been established for little over a year with siblings he had not seen for some years. He had parents in Turkey with whom he had been living until he decided to leave and to come to the United Kingdom. That was on the findings of the adjudicator a voluntary act. There is no reason why he should not return and continue his family life with his parents in Turkey, being able to see his sisters who are still there. His eldest brother is now a British Citizen and has visited his parents in Turkey. He can continue to do so. Equally, the respondent can (at least if he persuades an Entry Clearance Officer of his bona fides) visit his siblings here. The particular family life he enjoyed in the United Kingdom with his siblings is not one which in the circumstances must continue to exist and which it would be unreasonable to break.
11. It is the particular nature of family life in the case which leads to the view that the conclusions set out by the Master of the Rolls in Mahmood, itself a case involving a marriage to a British Citizen settled in the United Kingdom, are not all embracing. Furthermore, it is to be noted that in conclusion number (6) Lord Phillips says :

"Whether interference with family rights is justified in the interests of controlling immigration will depend on

(i) the facts of the particular case and

(ii) the circumstances prevailing in the State whose action is impugned".

12. We have no doubt whatsoever that in the circumstances of this case the requirement that the respondent should leave the United Kingdom was reasonable and proportionate and that any interference with his family life was accordingly necessary in the interests of immigration control and so of the economic well-being of the country.
13. Our conclusions have made it strictly speaking unnecessary to deal with the ground on which leave to appeal was sought. But it has been argued and we should indicate our views on it. The ground is based on the penultimate sentence of the adjudicator's determination where she says:

"Applying the lower standard of proof I find that the [respondent] has made out his case under Article 8".

This presumably means that the adjudicator has decided that all that the respondent had to show was that there was a reasonable degree of likelihood or a real risk that Article 8 would be breached.

14. Removal from the United Kingdom may expose a person to treatment in the country to which he is to be removed which contravenes his human rights. In order to make the Convention effective, the ECtHR has decided that a signatory must not expose anyone to such a risk where the signatory itself has no control over what may be done to him. If a real risk of such treatment exists, removal should not take place: see Chahal v United Kingdom (1996) 23 EHRR 413. This is a reflection of the requirement that a signatory must provide adequate protection against the risk of such treatment within its territory so that, if the absence of such protection results in such treatment, the signatory will be liable: see A v United Kingdom (1988) 27 E.H.R.R. 611. In circumstances where the alleged breach will take place (if at all) in the country to which removal is directed, the real risk test and the lower standard of proof will apply. It will but rarely be met in the case of Articles other than those such as Article 3 which are unqualified.
15. Where the assertion is that the fact of removal itself breaches human rights, the situation is different. This will usually involve Article 8 and an allegation such as is made in this case that to remove will interfere with the right to respect for family life or private life. That involves a direct breach by the appellant of human rights. Accordingly, the respondent must establish that there has been an interference with his right to respect for his family life. If he does, the adjudicator must decide whether that interference is in accordance with law and is proportionate. Standard of proof in its strict sense is not material, but the burden is on the appellant to establish that the removal is indeed justified. The appellant has to carry out a balancing exercise and the adjudicator has to undertake the same exercise on appeal, giving appropriate weight to the appellant's decision.
16. It follows that the adjudicator was wrong to refer to the lower standard of proof. It should have played no part in her decision.
17. In the circumstances, this appeal is allowed. The removal directions may be implemented.

Sir Andrew Collins (President)