![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> NS (Relevance of children to removal, Art 8) Sri Lanka [2005] UKIAT 00081 (04 April 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00081.html Cite as: [2005] UKIAT 00081, [2005] UKIAT 81, [2005] UKAIT 00081 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
NS (Relevance of children to removal – Art 8) Sri Lanka
[2005] UKIAT 00081
Date of hearing: 5 January 2005
Date Determination notified: 04 April 2005
NS |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
- Is there family life as between mother and daughters?
- If so, would a removal of the mother amount to an interference with that family life?
- Was such removal lawful?
- Was it proportional to the proper exercise of immigration control?
'That means no more than that the Secretary of State cannot give directions for his removal whilst his indefinite leave to remain exists, but it does not mean that there is, in the sense in which it is explored in Mahmood, an insurmountable obstacle to his return. The fact of former recognition of refugee status does not of itself show that there is a continuing insurmountable obstacle to returning to the country of origin. Such cases will depend upon a consideration of the specific facts upon which the claim had been recognised. It is not necessary for the Refugee Convention cessation provisions to be applied to someone with refugee status and ILR in order for the potential of his return to the country of origin, so as to remain with his family, to be contemplated in an Article 8 case. There is no automatic insurmountable hurdle in the mere fact of the past grant of ILR. Of course, that person is not expected to prove his asylum claim again and there would need to be a proper basis for contemplating that circumstances had changed significantly since the grant of ILR. If they have, and it is contended that a person still faces an insurmountable obstacle to return with his family, evidence will be needed as to why.'
'In its analysis, the court takes into consideration the age of the children concerned, their situation in their country of origin and their degree of dependence on their parents. It cannot in effect consider the matter from the sole point of the view of immigration, by comparing this situation with that of persons who have only established bonds after becoming settled in their host country...'
'The appellant's younger daughter is not required to remain in the United Kingdom. There are no insurmountable obstacles to her returning toSri Lanka
. The contact between mother and daughter could still be maintained.'
'Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member 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 an expulsion for a member of a family that has been long established in the state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled."
'The Adjudicator's reference to the need for there to be "no insurmountable obstacle to the family living together in the country of origin and for 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 on 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 other two 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.
It is always necessary to consider the facts of a particular case. Lord Phillips' 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 are in Turkey with whom he had been living until they decided to leave and 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 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 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.'
[ It may well be that such comments should now be
read within the context of Razgar and of Huang]
'Because there is no presumption of family life, in my judgment of family life, it is not established between an adult child and surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom [1984] 40 DR 196 and Abdulazis, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, though in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.'
37. In coming to our conclusions the first question to ask is of course whether there exists family life as between the appellant and her daughters in the United Kingdom. The existence of family life as between parent and child must necessarily depend upon the circumstances of the particular case. As the Court of Appeal made clear in the case of Kugathas at paragraph 25 of the judgment of Lady Justice Arden, there is no presumption of family life. Further, it is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties. The judgement went on in these terms:
" Such ties might exist if the appellant were dependent
on his family or vice versa. It is not however essential
that the members of the family should be in the same
country. The Secretary of State accepts that the possibility
may exist, although in my judgement it will probably be
exceptional. Accordingly, there is no absolute rule that
there must be family life in the United Kingdom, as the
Immigration Appeal Tribunal held."
'In my judgment, where in a deportation case an interference with family is under consideration in the context of the deportee's right to freedom from interference with the exercise of family life under Article 8, it is right to consider and take into account the effect of the interference on all those sharing the family life in question, and not simply the effect upon the individual who is subject to possible deportation. I accept that this question was not specifically addressed by the European Court in either Boultif or Amrollahi. Nevertheless, it is consistent with the manner in which the European Court expressed itself in those cases and with its approach. It seems to me artificial and unsatisfactory that, where a right to family life is established as existing, the effect of the interference on only one individual should be taken into account. That must particularly be so where the effect of the decision to be made, if made one way, is likely to be to destroy the family life in question. The purpose for the Article is, in relation to family life, to conserve that life. As I pointed out, the impact of one family member in turn impacts on another. So I consider that it is the effect of the proposed interference with the family life as a whole which should be taken into account.'
'I conclude that the Tribunal was right in deciding that it was not primarily concerned with the human rights of S. The grounds of appeal under s.65 are restricted to breach of the human rights of the appellant. The human rights of another person will only be relevant if a breach of them impinges on the human rights of the appellant. I also conclude that the Tribunal was wrong if, as I think it did, it concluded that in considering the rights of the appellant, AC under Article 8, it should take no account of the impact of the proposed deportation on S. On an appeal under s.65 the Adjudicator and the Tribunal should take into account of the impact of the proposed deportation on the family life of any person with whom the appellant has established a family life.'
'We also agree with the point made by him in paragraph 32 when he points out that the impact of removal, or refusal of entry, may have an impact on a person other than the Appellant and that impact in turn may affect the Appellant; for example, the anxiety that the non-appellant may feel about the absence of the Appellant may in turn make the appellant distressed. However, it is only in that indirect way that the position of someone other than the Appellant can be taken into account. The Tribunal is still examining the Appellant's position when it allows for the indirect impact of the position of others. It is right to say that there are passages in Jack J's judgment which suggested that a broader approach was being taken; which appeared to contradict what he said elsewhere. However, if a broader approach had been intended, which we doubt, we would not have followed it. We are bound by Kehinde which is correct as a matter of statutory interpretation.'
'Even were the Tribunal to have the power to look more widely than it does at the position of the family, it would still be necessary for those who were not the Appellant to identify themselves as "victims". Only those who so identify themselves have the right to challenge decisions on human rights grounds by s.7 of the 1998 Act. It would be entirely inappropriate for someone, the Appellant, to seek to advance his case by reliance on the rights which he asserts for others which they do not seek to vindicate themselves.'
'The appellant is now nearing 26. He was nearing 23 at the date of the decision. At that age, is it possible to have a family life with parents but one would normally expect something stronger than the normal ties of love and affection and concern for a child or parent's wellbeing. There should be evidence of specific emotional dependency or a serious lack of maturity. There is no evidence of any especial mental or emotional dependency of the Appellant on his parents; he is financially dependent on them. Although he has illnesses in Malaysia, he is in good health and is not physically or mentally disabled. We would accept that he does at present enjoy some form of family life with them but that is inevitably one which will diminish as the years go by and the normal expectation would be that in the United Kingdom he would set up home away them in due course, as have his brother and sister, and that it would be stretching a point to say that he then enjoyed family life with them. We accept that a family life can be constituted by the relationship with adult siblings but it is not usually strong in the absence of any particular dependencies; they would normally be regarded as separate families who have grown up and gone their separate ways, however much the bond of affection and contact remained. This evolution reflects the way in which the rules make it fairly easy for children up to 12 years old to join their parents somewhat more difficult for those under 18, and impose very much more stringent tests for those over 18.'
'17. We regard it as clear that the effect of s.65 is to require the Adjudicator and the 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. The appellant's human rights are not breached by a decision relating to his entitlement to enter or remain simply because the right of someone else who is not an appellant may be breached by that decision. That another person has the ability, if a victim, to bring proceedings in the Administrative Court under s.7 of the 1998 Act. It may be cumbersome, but it avoids an appellant making claims related 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 respect.
18. This is not to say that the position of others is always irrelevant. As the Tribunal pointed out in its ruling on this matter, the impact on the human rights of a third party may be relevant in this way. If their return to the country to which it is proposed to remove the appellant is precluded because that would put their Article 3 rights there at risk, that may be very material to the degree to which they might be able to unable to return and hence to the degree of interference with the appellant's rights which the latter's removal might entail. We also accept, as Jack J pointed out in AC, that although the right to family life and the effect of interference on it is examined, under s.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 that matter is examined.
19. Although there was room for some argument before us as to the meaning of the judgment, we consider that, read as a whole, it is accepting the point that an appeal under s.65 must be determined by whether or not the decision breaches the right of the appellant in all the circumstances. We agree with Jack J's observations if we are correct in our understanding of them; they are in line with Kehinde and with the paragraphs of the ruling referred to in the Order.'
'Taking initially the elder daughter, once a person is no longer a child, family life relationships may be considered to continue only if there continues to be a factual content to those relationships. The appellant's daughter has been in the United Kingdom since 2001, the appellant's daughter, has aunt and uncle and cousin in the United Kingdom. The appellant's daughter, although it may have been difficult has within that two year period settled into the United Kingdom educational system and is studying for her 'A' levels.'
Approved for electronic distribution as a reported decision