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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Secretary of State for the Home Department v N (Sri Lanka) [2004] UKIAT 00069 (16 April 2004) URL: https://www.bailii.org/uk/cases/UKIAT/2004/00069.html Cite as: [2004] UKIAT 00069, [2004] UKIAT 69 |
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APPEAL No. [2004] UKIAT 00069 N (Sri Lanka
)
Date of hearing: 22 March 2004
Date Determination notified: 16 April 2004
Secretary of State for the Home Department | APPELLANT |
and | |
N | RESPONDENT |
For the Appellant: Mr J McGirr, Home Office Presenting Officer
For the Respondent: Mr D O'Callaghan of Counsel representing
The Adjudicator's Determination
(a) The delay by the Secretary of State in deciding the claimant's application.
(b) Following the death of the claimant's mother, the family unit had become a particularly close one and the removal from the UK would cause the claimant and his family "an enormous amount of emotional and psychological distress".
The Appellant's Submissions
The Claimant's Submissions
The Issues
(a) Given that the Secretary of State had failed to give consideration to the Article 8 issues himself, was the determination made by the Adjudicator one that was lawful and proportionate and when set against immigration control or would the decision to remove this claimant be so disproportionate that no reasonable Secretary of State could remove him in the circumstances that prevailed?
(b) If the determination of the Adjudicator was unlawful, or did not take into account relevant jurisprudence, could we substitute our determination, particularly take into account the guidelines set out in the starred determination 00024 M (Croatia)*?
Decision
"Generally, relationships between adult siblings or adult children and their parents will not fall within the scope of Article 8, but in each case it is a question of fact whether there exists ties strong enough to constitute family life within the meaning of the Article."
The authority for this is taken from the Strasbourg decision in Advic which sets out that such a relationship will not necessarily require the protection of Article 8 without evidence of further elements of dependency, involving more than normal emotional ties.
"28. The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out. This decision is starred for what we say about proportionality."
A R MACKEY
VICE PRESIDENT