United Kingdom Asylum and Immigration Tribunal

MM (Article 8 – family life – dependency) Zambia [2007] UKAIT 00040

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 3 January 2007

Date Determination notified: 23 April 2007

Before

Senior Immigration Judge Storey

Immigration Judge Dawson

Between

MM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr H Norton-Taylor, Counsel, instructed by Hawkins Russell Jones

For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

In the context of an in-country appeal, assessment of the facts relating to private and family life within the meaning of Article 8(1) of the ECHR has to be made as at the date of hearing, not the date of decision. However, that assessment is one which has to be made in the round, taking account of past, present and likely future circumstances. The fact that an appellant is economically dependent on adult children whilst in the United Kingdom under immigration conditions which prevent her from working is not determinative of the question of whether she is in a position of real dependency.

1. The appellant is a national of Zambia. She is sixty years old. On 23 December 2001 she came to the UK as a visitor. On 12 April 2002 she applied for indefinite leave to remain in the UK as a dependant of her two adult daughters who are British citizens. On 17 March 2003 the respondent refused to vary her leave to remain on that basis. She appealed. On 3 September 2004 an adjudicator, Mr L Lobo, dismissed her appeal. He concluded that she did not meet the requirements of paragraph 317(i)(e) of the Immigration Rules HC395 as amended and could not succeed on Article 8 grounds. Reconsideration was sought and ordered on Article 8 grounds only. In a decision dated 29 September 2006 Senior Immigration Judge Waumsley decided that the adjudicator had materially erred in law. His decision was as follows:

"1. The appellant arrived in the United Kingdom in December 2001, ostensibly as a visitor to see her two adult daughters. She applied for indefinite leave to remain as their dependent relative in April 2002. That application was refused by the respondent in March 2003.

2. The appellant exercised her right of appeal against that refusal. Her appeal came before an adjudicator (Mr L J R Lobo) sitting at Taylor House, on 20 August 2004. By his determination, which was promulgated on 3 September 2004, he dismissed the appeal on both immigration and human rights grounds.

3. The appellant then applied for, and was granted, permission to appeal to the former Immigration Appeal Tribunal. By virtue of article 5(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005, the appeal now takes effect as a reconsideration pursuant to article 5(2) of that Order.

4. The sole basis on which the appellant seeks to challenge the adjudicator's decision is in relation to his dismissal of her human rights appeal under Article 8 (right to respect for private and family life) of the European Convention on Human Rights and Fundamental Freedoms. That challenge is in itself based on two separate grounds, namely that the adjudicator made inconsistent findings of fact as to whether or not the appellant had established a sufficient private and family life in the United Kingdom as to engage Article 8 at all, and that he failed to take account of all material evidence when arriving at his assessment regarding proportionality.

5. At the start of the hearing before me, Mr M Blundell, who appeared for the respondent, conceded with some hesitation that the adjudicator's decision in relation to the Article 8 claim was, in his words, "just not good enough". On that basis, he was content to concede that the hearing should be adjourned for a full stage 2 reconsideration before a different Immigration Judge so as to enable fresh findings of fact to be made on the material evidence, and for fresh conclusions to be reached based on the basis of those findings. Mr H Norton-Taylor, who appeared before me on behalf of the appellant, confirmed that he was content with that proposal.

6. In the circumstances, I am satisfied that the adjudicator made a material error of law in arriving at his decision in relation to the Article 8 claim, namely that he failed to give adequate consideration to the evidence before him, and failed to carry out sufficient analysis of that evidence in so far as it related to the Article 8 claim. In the circumstances, and in light of the agreement reached between the representatives for the parties, I am left with no alternative save to adjourn this hearing for a full stage 2 reconsideration before a different Immigration Judge, limited to the question whether the appellant's removal from the United Kingdom would constitute a disproportionate interference with her right to respect for private and family life under Article 8 of the Human Rights Convention."

2. The parties agreed at the hearing that there was no dispute as to the facts relating to the appellant's family circumstances in the UK. Mindful of the approach set out by the Court of Appeal in DK (Serbia) [2006] EWCA Civ 1747, Mr Norton-Taylor conceded that in the absence of any Rule 32(2) notice relating to the submission of evidence not submitted on any previous occasions, the findings of fact made by the Adjudicator should stand. In particular he agreed that the reconsideration was to proceed on the basis that between 1981 and her arrival in the UK in December 2001 the appellant had supported herself. Correspondingly, Mr Avery did not seek to challenge the appellant's statements in relation to her circumstances since arrival in the UK. In a statement signed on the date of hearing before us the appellant set out her current situation as follows:-

"1. I live at [address supplied] with my daughter … who rents a flat at that address from our friend … I have put in the Bundle the Tenancy Agreement dated 3^rd June 2005. The tenants are shown as … and myself (although my surname is omitted) and my daughter … pays part of the rent of £600 per month.

2. Occasionally I live at [address supplied] with my other daughter NM and her husband, JC.

3. I occupy myself by looking after my step daughter in law's children occasionally, I do some ironing and church activities.

4. I am aged 60, having been born on 11^th September 1946.

5. If permitted to remain, I would seek employment in the care work field. I have done some training as a care worker. My daughters paid for that training. I would also be in a position to help my children.

6. In the Bundle I have added correspondence from my eldest sister … and my husband (estranged) concerning the difficulties I would have financially and otherwise if I return to Zambia."

3. Mr Norton-Taylor submitted that as the appellant has depended on her daughters for both emotional and financial support throughout her time in the UK, she has both a private and family life within the meaning of Article 8(1). She has lived together with one of her daughters since arrival in the UK. One of them is still unmarried. Being estranged from her husband, she lacks any other family to whom she can turn to for emotional and financial support. Mr Norton-Taylor next submitted that the decision to refuse the appellant leave to remain amounts to an interference with the appellant's private and family life having grave consequences, in view of the following factors: her children and grandchildren are present and settled here and her children work in the UK;the appellant would therefore have to return alone;since her children and grandchildren would stay in the UK, she will lose contact with them;her health, albeit not serious, is poor;and Zambia is one of the countries with the highest percentage of population living below the poverty line.
4. Mr Avery disputed the existence of family life within the meaning of Article 8(1) in view of the evidence that the appellant had been able to support herself prior to coming to the UK and was prepared to work, despite medical problems. Therefore her dependency was artificial. Even if the Tribunal considered there was a protected right within the meaning of Article 8(1), and that the decision interfered with it, such interference would not be disproportionate. The appellant had no serious physical or mental problems. She is still fit enough and willing enough to work. The bonds she shared with her two daughters, who are adults and one of whom was now married, contain no emotional and/or economic elements over and above those normally found between a mother and adult children. Even if Zambia has a very high percentage of the population living below the poverty line, that does not create a disproportionate or truly exceptional situation for this appellant.
5. In reply to Mr Avery's point about the artificiality of dependency, Mr Norton–Taylor contended that dependency in an Article 8 context is a question of fact and one which, by virtue of s.85(4) of the Nationality, Immigration and Asylum Act 2002, stands to be assessed as at the date of hearing (in this case the hearing before us).

Our Assessment

6. Two points needs emphasising at the outset. First, even though the immigration decision was a refusal to vary leave to remain, it was one which required a decision as to its compatibility with the appellant's human rights: see JM [2006] EWCA Civ 1402. Second, we must decide this case in the light of the recent guidance of the House of Lords in Huang [2007] UKHL 11 and in particular their guidance that in assessing proportionality there is no legal test of "truly exceptional circumstances". We considered whether to invite further submissions from the parties relating to Huang, which post-dates the hearing before us, but decided it was unnecessary since that judgment, whilst rejecting the Court of Appeal's view that the "truly exceptional circumstances" test is a legal one, otherwise reaffirmed the analysis it gave in Razgar [2004] UKHL 27 and also reaffirmed the importance of continuing reliance on established Strasbourg jurisprudence relating to Article 8: see [18]-[20]. Lord Bingham's step-by-step approach in Razgar continues to apply to all expulsion cases. As before, while it is necessary first to establish whether there is a private or family life with which removal will interfere, Lord Bingham's five questions should thereafter serve as the framework for deciding such cases.
7. In this case the main focus of argument has been on whether there is a family or private life or both. Mr Norton Taylor's first principal submission is that we should find that the appellant enjoys a family life within the meaning of Article 8(1). If, however, we were not persuaded that she has such a family life, he asked us to find that she nevertheless enjoyed a private life within the meaning of the same subparagraph.

The "family life" issue

8. We remind ourselves that the mere existence of a family relationship is not sufficient for the applicability of Article 8. In the case of relationships other than that between a parent and a natural child who is still a minor, family life within the meaning of Articled 8 will only arise if there are sufficiently close factual ties. In order to establish family life, it is necessary to show that there is a real, committed or effective support or relationship between the family members. The normal emotional ties between a mother and an adult son or daughter will not, without more, be enough: Kugathas [2003] EWCA Civ 31, Advic v UK (1995) 20 EHRR CD 125, [1995] ECHR 57, Marckx v Belgium (1979) 2 EHRR 330 para 31.
9. We agree with Mr Norton-Taylor that the existence of family life is to be assessed as at the date of hearing. We note that, suggestive to the contrary, Macdonalds Immigration Law and Practice (5^th edition para 8.57 states:

"The existence of family life is to be assessed at the time when the decision constituting an alleged interference is made, so that no account will be taken of the establishment of family life between the making of a decision to remove someone and its intended implementation".

10. What this paragraph fails to mention is that the focus of the Strasbourg Court is on the final national decision: see Boucheikia v France (1997) 25 EHRR 886, Yildiz judgement, 31 January 2002. In the context of this appeal that decision, by virtue of s.85(4) of the 2002 Act, must consist in the one we have to make on the basis of the evidence as at the date of hearing before us, not as at the date on which the Secretary of State made the decision to refuse to vary leave to remain. Accordingly Mr Norton –Taylor is entitled to rely on the appellant's current family circumstances in the UK.
11. However, it does not follow that the assessment of family life which has to be made is one which freezes the situation in the present, without regard to the past and probable future. The preliminary question of whether or not there is a family or private life (or both) is plainly a different question from those raised in Lord Bingham's five questions: one obvious difference is that its analysis does not involve any balancing exercise. However, at all stages of the Article 8 assessment – when deciding whether there is an existing private or family life, when deciding whether any existing private or family life is the subject of an interference having grave consequences (Lord Bingham's question 2) and when deciding whether any such interference is proportionate to the legitimate public end sought to be achieved (Lord Bingham's question 5) – the approach followed by the Strasbourg Court is to take account of a wide range of circumstances, including the applicant's previous personal and family circumstances and the likely developments they will undergo in the future: Marckx v Belgium, Berrehab v Netherlands (1988) 11 EHRR 322, Keegan v Ireland (1994) 18 EHRR 342. That too must be our approach. Indeed it is for this reason that we accept that Mr Norton-Taylor is entitled, when urging us to view the appellant's family circumstances in the UK as established enough to give rise to family life, to pray in aid the fact that she has now been in the United Kingdom over 5 years.
12. Turning to assess whether the appellant's family circumstances amount to family life within the meaning of Article 8(1), we note that there is no dispute as to their essential particulars. Although his findings on this matter were not entirely clear (compare paragraph 12 with 14), the adjudicator plainly did not consider that the appellant had demonstrated elements of dependency involving more than the normal emotional family ties between a mother and her two adult daughters. However, the issue is now for us to decide on the basis of the evidence relating to the situation as at the date of hearing before us, not at the date in August 2004 when he heard her appeal.
13. Mr Norton-Taylor's principal objection to the adjudicator's finding that there were no elements of dependency does not relate to the latter's assessment that the emotional content of the ties concerned was no more than normal, so much as to his failure to appreciate that these ties had (and still have) an economic content: he pointed out that it was not in dispute that the appellant had been economically dependent on the two daughters since her arrival in the United Kingdom. He contended that when economic dependency was added to the fact of emotional dependency, family life within the meaning of Article 8 was established.
14. We would accept that since arrival in the United Kingdom the appellant has relied on her daughters for financial support. But that is not in our view determinative of the question of whether she is factually in a position of dependency. We agree with Mr Avery that it would be artificial to focus solely on who is providing for the appellant in the UK, since her immigration status since arrival has prevented her from working. She has been under a legal bar against providing for herself through work, or business or self-employment and this state of affairs will only change if she is successful in her appeal or the Secretary of State decides to grant her further stay which does not prohibit her from working. Furthermore, it is part of the accepted facts in this case that prior to coming to the UK the appellant had been economically self-sufficient: the adjudicator did not accept that she had been supported by her daughters when still living in Zambia;he found she had supported herself (as indeed she had stated in her family visit application form at Q33).
15. Thus the appellant is someone who has previously held professional employment in Zambia, having worked as a secretary for the Zambia Industrial and Mining Corporation and holding certificates in personnel management and industrial relations. She has also worked as an industrial relations manager: see para 9 of the determination. In addition, the appellant describes herself as someone who has an ongoing wish to work notwithstanding her age (60): As we have seen, she said, albeit in the context of her situation if allowed to remain in the UK, that she would want to work. We see no reason why, if she could work in the UK, she cannot work in Zambia.
16. In the light of this evidence we do not consider that the appellant has shown that she is now in a position of real dependency upon her daughters. She was not dependent on them before she arrived in the UK and she would not need to be dependent on them when she returned to Zambia. The cause of the disruption to the appellant's ability to support herself has been her decision, whilst here as a visitor, to seek leave to remain as a dependent relative. It has not been because she is someone who cannot support herself. Accordingly we conclude that since her emotional ties to her daughters and grandchildren contained no features over and above the normal and since her current position of economic dependency in the UK did not reflect her real economic position in her country of origin, the appellant has failed to show that she had an existing family life within the meaning of Article 8(1).

The "private life" issue

17. Nonetheless, as Mr Norton-Taylor properly submitted, it is still open to us to decide that the appellant has a protected right under Article 8(1) by virtue of the fact that she has a private life or that her private and family life circumstances, viewed cumulatively, amount to a protected Article 8(1) right. The need to view "private and family life" as a composite right has been a settled part of UK and Strasbourg case law: see Nhundu and Chiwera 01/TH/0613. However, as the adjudicator's approach in this case illustrates, it is not one which is always borne in mind. So as to reinforce its importance, it is instructive to consider how the Strasbourg Court proceeded in the recent case of Sisojeva v Latvia [2005] ECHR 405. In this case the threatened break up of a family with adult children was considered as an interference with private life, since the age of the children precluded the Court from finding the continued existence of a family life. The Court noted that the applicants had spent most of their lives in Latvia and so had "developed personal, social and economic ties strong enough for them to be regarded as sufficiently well integrated into Latvian society".
18. We do not find that the appellant's private life circumstances show that she has developed strong enough ties to give rise to a protected right under Article 8(1) even considering her personal, family, social and other circumstances cumulatively.
19. Having found that the appellant has no existing private and/or family life, it is not strictly necessary for us to proceed further.

Article 8(2) issues

20. Even assuming, however, that the appellant has a protected right under Article 8(1) based on her close relationship with her two daughters (with one of whom she shares a house) and with her grandchildren, and even assuming the decision to refuse to vary her leave to remain (since it will entail removal) will have grave consequences for the appellant, we do not consider that it is a disproportionate one (We can move straight to Lord Bingham's question five because there is no dispute that the interference in this case was in accordance with the law (question 3) and pursued a legitimate aim (question 4).)
21. When conducting the balancing exercise under Article 8 we take into account in the appellant's favour that she is over 60, that she has health problems, that she is estranged from her husband, that has been in the United Kingdom for over 5 years, that during that time she has been living in the same household as one of her adult daughters, that she has formed ties with her grandchildren and that during this time her adult daughters have economically supported her. However, her health problems are not serious;she is still willing and able to work;she has re-established her relationship with her daughters and her grandchildren in full knowledge that her immigration status was precarious;she is not someone in a position of real economic dependency;her two daughters are adults and the emotional ties she has with them contain no elements over and above those normally found between a mother and adult daughter. Even assuming she will have no immediate family to return to in Zambia and that she will be living alone, the resultant circumstances do not indicate any significant hardships. We do not regard the fact that Zambia has a very high rate of poverty as constituting a significant circumstance, but in any event there is no reason to consider that this appellant, with her prior employment experience and her continuing desire to work, would fall into poverty. Contact between the appellant and her daughters can be maintained by visits by them to her in Zambia. Alternatively she has a viable option of applying from Zambia under the immigration rules relating to visitors, although whether she would have real prospects of success is not a matter for us: see SB (Bangladesh) [2007] EWCA Civ 28.
22. These factors have, of course, to be considered cumulatively, but even considered thus they do not make the decision under appeal in this case one which constitutes a disproportionate interference with the appellant's right to respect for her private and family life.
23. For the above reasons we conclude:

The adjudicator materially erred in law. However, the decision we substitute for his is to dismiss the appellant's appeal.

Signed Date

Senior Immigration Judge Storey