Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (21 January 2003)

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/31.html
Cite as: [2003] INLR 170, [2003] All ER (D) 144, [2003] EWCA Civ 31

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JISCBAILII_CASE_IMMIGRATION

Neutral Citation Number: [2003] EWCA Civ 31
C1/2002/1943

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand
London, WC2
Tuesday, 21 January 2003

B e f o r e :

LORD JUSTICE SIMON BROWN
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN

____________________

NAVARATNAM KUGATHAS Appellant
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

____________________

(Computer-Aided Transcript of the Stenograph Notes of
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____________________

MR M GILL QC AND MR M JACKSON (instructed by Alaga & Co, London SW17 0SF) appeared on behalf of the Appellant
MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

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  1. LORD JUSTICE SEDLEY: This is an appeal, by permission of Schiemann LJ, by a Sri Lankan asylum-seeker against the oversetting by the Immigration Appeal Tribunal of an adjudicator's decision in his favour.
  2. The decision in question, given by Mr PS Aujla on 18 January 2002, rejected the applicant's asylum claim on grounds of credibility but upheld his appeal against removal on the ground that to remove him would disproportionately interfere with the respect due under Article 8 to his family life. On the Home Secretary's appeal the IAT overset the latter decision. There was no cross appeal on the asylum question.
  3. The appellant is now (probably) 38 years old. The relevant facts are simple and can be taken from the adjudicator's written decision at paragraph 27:
  4. "Apart from the issue of persecution and ill-treatment, I find that the other relevant material facts have established that the Appellant has the following relations in Germany who have been granted asylum there: his mother, brother, sister and sister's husband and their infant child. Copies of their passports/ID cards have been put before me. I am prepared to accept that these are the Appellant's genuine relations. I also accept that he is a single man who has no family in Sri Lanka. His sister has been to visit him here in the United Kingdom once and he has regular contact with them all by telephone."

    The adjudicator had earlier recorded that in 1986 the applicant's father had been killed by the Sri Lankan security forces.

  5. The adjudicator's conclusions on the subject were these:
  6. "35. Under this Article I have to determine the following separate questions:
    1. Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
    2. Is that interference in accordance with the law?
    3. Does that interference have legitimate aims?
    4. Is the interference proportionate in a democratic society to the legitimate aim to be achieved?
    36. The Appellant does not have an established family life in Sri Lanka as he has no member of the family left there and he has been away from the country for the last 17 years. He left the country when he was very young. He is a single man with members of his close family living in Germany and enjoying their company, in person or by telephonic contact, is his 'family life'. He has no established family life in the United Kingdom either. However, whatever family life he has anywhere in the world, he is entitled to have access to it and enjoy it from the least convenient location in the world. The Appellant's sister has been to visit him in the United Kingdom and no doubt the other members would come to visit him as well as time goes by. Equally, if he himself were in a position to visit them in Germany in the future, I have no doubt he would visit them and enjoy their company, especially that of his mother. He keeps in contact with the family by telephoning them regularly.
    37. The Appellant will not be able to enjoy the family life with his family in Germany if he is returned to Sri Lanka with the same ease and convenience as he has been so far doing while in the United Kingdom. The quality and strength of that enjoyment will diminish to a non-existent level, on account of the distance and the expense of telephone calls if he is to be removed to Sri Lanka. In the circumstances, although the Appellant has no family in the United Kingdom, I find that he still does have a 'family life' here for the purposes of the 1950 Convention. I therefore find that his protected rights under this Article are engaged which will be breached if he is returned to Sri Lanka. I find that the interference with his rights is not proportionate to the Respondent's legitimate aim of regulating immigration control."
  7. The Home Secretary sought permission to appeal to the IAT and was granted it. It is apparent from the IAT's reasons that the grounds challenged all the elements of the adjudicator's decision, but the focus of the appeal was the adjudicator's holding that although the appellant had no family in the United Kingdom, he nevertheless enjoyed a family life here through contact with his close relatives in Germany, a contact which, in the adjudicator's opinion, he could not enjoy as fully if he had to maintain his contacts from Sri Lanka.
  8. This was without any doubt an appealable decision, but it did not hinge on any question of law as to where, if anywhere, the material family life had to be located for Article 8 purposes.
  9. The IAT, however (Mr JA O'Brien Quinn QC and Mr Davey) in a decision of fewer than three pages promulgated on 11 June 2002, almost seven weeks after the hearing that had taken place before them, held that the adjudicator had erred in law in failing to confine the meaning of family life to family life in the United Kingdom. They held:
  10. "15. The situation as we see it is, that for a person to claim that there would be an interference with his private and family life here, he must first establish that he has a family life in the United Kingdom. However, it was found by the Adjudicator that the appellant had not established a family life in the United Kingdom. What the Adjudicator found was that the [appellant] had left Sri Lanka 17 years ago and had no established family life there, but, although he had not established family life in the United Kingdom either, he did have a 'family life' here for the purpose of the 1950 Convention as he would not be able to enjoy family life with his family in Germany if he were returned to Sri Lanka with the same ease and convenience which he has been doing so far while in the United Kingdom. The Adjudicator found that the quality and strength of that enjoyment would diminish to a non-existent level on account of the distance and expense of telephone calls if the appellant were removed to Sri Lanka.
    16. In our considered opinion, the contention that the appellant would not be able to enjoy family life with his family in Germany, if he were returned to Sri Lanka, with the same ease and convenience as he as been so far doing while in the United Kingdom, cannot establish that the [appellant] has a family life in the United Kingdom. Either the appellant has family life in the United Kingdom or he has not. He cannot establish a family life in the United Kingdom on the basis that it is more convenient for him to be in contact with his relatives in Germany from the United Kingdom rather than from Sri Lanka."

    The IAT accordingly allowed the Home Secretary's appeal on a ground which Schiemann LJ, in granting permission to appeal, understandably considered to be of general importance.

  11. Before us, however, Mr Robin Tam for the Home Secretary has not sought to sustain the IAT's decision on the ground which it gave. In the skeleton argument drafted by Mr Kovats, the same series of questions is rightly adopted as the adjudicator had adopted in paragraph 35 of his decision, but the first of the adjudicator's questions is broken down into two parts:
  12. (1) Does the appellant enjoy (ie have) family life?

    (2) If yes, will removing him from the United Kingdom be an interference with his right to respect for his family life? This I would hold to be a correct approach. While it will no doubt make it very difficult in most cases to establish interference with family life by removal from the United Kingdom if the family life which is established is located or centred elsewhere, it involves no such territorial barrier as the IAT, for no articulated reason, accorded to it.

  13. The subsequent decision of a differently composed Immigration Appeal Tribunal (Collins J, Mr Mather and Mr Baines) in Entry Clearance Officer, Lagos v Imoh [2002] UKIAT 01967 gives no support to the proposition advanced by the IAT in the present case. Imoh was a case in which the aunt and uncle of an orphaned four-year-old Nigerian girl had sought entry clearance to bring her to live with them in the United Kingdom. Addressing the relevance of Article 8 to such a decision (where by definition the applicant herself is not in the United Kingdom) the IAT said:
  14. "The fact is in our judgment that there is no family life in this case. What is being done here is an attempt to create a family life in this country. In our view Article 8 requires that there is as a matter of fact a family life in existence and the mere payment of money for the care of a child, and one visit to see that child, is not capable of creating a family life. Furthermore, the purpose behind the requirement that the sponsor is settled in this country is that the entry of dependants is only to occur if there is a settled family in this country. The whole tenor of the immigration rules is that those who seek to come to this country will either come individually on a temporary basis or if it is a question of setting up a life here will come for or remain for sufficient time to be entitled to settlement here. It is only if they are settled here that they are entitled to bring members of their family to this country in order to settle here and when one thinks about it the reasoning behind that is obvious. If they are not settled here then their position is precarious and they can at any time go back to whichever country they came from, in this case Nigeria.
    6. There is in these circumstances no reason why the sponsor and her husband should not, if they feel the need to look after the little girl, go back to Nigeria and establish the family life there. This may seem a harsh approach, and in individual cases it will no doubt produce what may appear to be an unfortunate result, but the principle is in our judgment clear. It is not possible to use the Human Rights Act in order to establish a family life in this country so that dependants who otherwise would not be able to enter this country because the sponsor was not settled here, can do so. That is not in our view what Article 8 is intended to cover. It is intended to protect the existence of an actual family life which would be interfered with were the particular decision to be refused and that of course will happen or may happen where the sponsor is indeed settled in this country but not where he or she is not so settled."
  15. This holding, as one would expect, is carefully phrased. It speaks of "an attempt to create a family life in this country" not because there is a an unspoken geographical test in Article 8 but because, in the case before the tribunal, it was here that it was sought to establish a family life for the child. The reason why this mattered was, as Collins J goes on to explain, that entry clearance for dependents demands a settled family already in this country. Hence the key holding, which follows, that "It is not possible to use the Human Rights Act in order to establish a family life in this country". I say no more about this decision, since it may yet reach this court, than that it gives no support at all to the IAT's reasoning in the case before us.
  16. How then did the IAT come to decide this appeal on the basis it did? It looks as if the Home Office presenting officer had initially advanced a territorial test for family life; but she had also expressly adopted the adjudicator's series of questions, which involve no such condition. She seems to have gone on to submit that the appellant's only true family life was in Sri Lanka, a proposition which would certainly have dealt with whether removal was going to interfere with it, but was wholly dislocated from the facts. Counsel for Mr Kugathas, the appellant, wisely stuck, for his part, to the adjudicator's reasoning.
  17. Before us, Mr Tam has not attempted to uphold the proposition of law on which the IAT's decision turned. It is necessary in my judgment to say no more about it than that there is no basis for it, either in the Convention or in any relevant authority. What will matter in each case to the question of location is the legal ground of the intended interference. For the rest, the question is one of fact, not of law.
  18. Albeit without any respondent's notice, Mr Tam therefore concentrates on the argument that the adjudicator's findings of fact do not amount to family life properly construed. The further argument that, contrary to the adjudicator's view, any family life which is established is so exiguous, and so slenderly reliant on Mr Kugathas' presence in the United Kingdom, that removal under an acceptable régime of law cannot possibly amount to interference with it, arises only if Mr Manjit Gill QC for the appellant succeeds on the prior question whether family life is established at all.
  19. Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:
  20. "Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."

    This, while it is not black-letter law, sets out what I would accept is a proper approach.

  21. It is true that it is a now elderly decision of the Commission alone, but we have been helpfully shown by Mr Gill a recent decision of the IAT chaired by Dr Hugo Storey, Entrance Clearance Officer Dhaka v Shamim Box [2002] UKIAT 02212, in which at paragraph 31 the IAT stresses, what is clearly right, that the approach to Article 8 in the case of an entry decision is different from the approach in a removal case. They go on: "Strasbourg has never seen this to entail a significant difference in underlying criteria." In other words, family life must mean the same thing whatever the issue, but the state of relevant fact in determining whether there is an extant family life is likely to be very different as between entry and removal cases. Whether the present case approximates more nearly to an entry case than a removal case is a question which needs, however, to be borne in mind. The IAT may also be right where in ECO Dhaka v Box, at paragraph 29, it suggests that the Strasbourg leading cases on entry focus on the state's positive duty to secure respect for family life.
  22. Nevertheless, there are repeated dicta which point to the continuing relevance of the passade which I have quoted from S v United Kingdom. In Marckx v Belgium [1979] 2 EHRR 330, a decision of the full Court, at paragraph 31 the adjectives "real" and "normal" were used to characterise family life if it was to come within Article 8. In Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 paragraph 63, again a decision of the Court, the phrase "committed relationship" was used. In Beldjoudi v France [1992] 14 EHRR 801, a decision of the Commission which went on to be upheld by the Court, at paragraph 55 the phrase "real and effective family ties" was used.
  23. Mr Gill says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning "support", in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, "real" or "committed" or "effective" to the word "support", then it represents in my view the irreducible minimum of what family life implies. It may be that, for a time in Germany, that minimum was reached, as between the appellant and his family there; but that time has gone.
  24. I would add, for completeness, that it is probable that the natural tie between parent and infant is a special case which may in some cases supersede any need for a demonstrable measure of support: see Boughanemi v France [1996] 22 EHRR 228 at paragraph 35.
  25. Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.
  26. For these reasons, it seems to me that the IAT was right to allow the Home Secretary's appeal, although it did so for the wrong reason. The right reason was that, giving the most benign interpretation to such factual evidence as there was before the adjudicator, it was not possible to find that it amounted to family life within the meaning of Article 8.
  27. Accordingly I would dismiss this appeal.
  28. LADY JUSTICE ARDEN: I agree that the facts as found by the adjudicator, read as Mr Gill rightly submits in the context of the adjudicator's decision, could not amount to a family life for the purpose of Article 8. The appellant is a single man of about 38 years old who has lived here since 1999. Previously to that, since about 1985, he was in Germany. His nearest family is his mother, his brother, his sister and her family, who are all living in Germany. They are refugees and after the appellant left Sri Lanka his father was shot dead in Sri Lanka. Those facts are, to say the least, life-changing experiences and part of the context within which this case must be decided.
  29. The appellant's nearest family is, as I have said, his mother, his brother, his sister and her family. It is possible that the appellant had a sufficient family life for article 8 purposes with them in Germany before he left. However, that point has not been fully argued and it is unnecessary to express a view on it.
  30. There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.
  31. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, 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 the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although 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.
  32. The links with this jurisdiction are however relevant to this case in another sense. The appellant left Germany without any act of the United Kingdom government and accordingly the only relevant family life in this case is that which exists between the appellant in this country and his immediate family. There have been telephone calls between them and also a single visit by the sister. I appreciate that the family are refugees and take account of the circumstances which occurred in Sri Lanka, to which I have already referred. However, in my judgment, a family life cannot not shown on the evidence that was before the adjudicator.
  33. Had I not been satisfied that that was so, I would have wanted to consider the question of whether or not there was any lack of respect for that family life by sending the appellant back to Sri Lanka. It is still possible for him, and indeed for his family, to make telephone calls to each other between Sri Lanka and Germany and, of course, it is still possible for the appellant to visit his family in Germany or a third country.
  34. In those circumstances, I have come therefore to the conclusion that the appeal should be dismissed.
  35. LORD JUSTICE SIMON BROWN: The Immigration Appeal Tribunal held in this case that the appellant needed to establish that he enjoys "family life in the UK". That, as the respondent Home Secretary rightly recognises, is not strictly correct. Take a case where, for example, a father lives in France, close to the Swiss border, enjoying, just over the border, weekly access to his dependent children who live there with their mother, his estranged wife. The family life would be enjoyed not in France but in Switzerland, and yet clearly any attempt by the French authorities to remove the father to, say, Sri Lanka would engage his Article 8 rights to respect for his enjoyment of family life.
  36. Such an exceptional case serves to point the error in the IAT's holding. It by no means follows, however, that the present case too is an exception to what is obviously the more general rule, the likelihood that any family life will be enjoyed in the country which is having to determine whether or not to remove (or, as the case may be, admit) the person concerned.
  37. The first real question arising in the present case is whether or not there has existed during the three years the appellant has been in this country any family life within the meaning of Article 8, such that his proposed removal now to Sri Lanka could reasonably be said to interfere with respect for it. The appellant is now in his 30s. It may perhaps be that during the 15 years or so he spent in Germany before coming to this country in 1999, he was then enjoying what could properly be described as family life, or at any rate private life, through his relationship and contact there with his widowed mother and his brother and sister. But even if he did then enjoy such private or family life (and I reach no conclusion one way or the other as to that) there was on any view substantial interference with it when, for reasons good or ill, the appellant left Germany and came to this country in 1999. The only contact he has enjoyed with his family since then has been (a) a single three-week visit made to him here in August 2000 by his sister, her husband and their young daughter and (b) periodic phone calls between the appellant and his relations in Germany. Nothing either in the domestic or the Strasbourg jurisprudence, to my mind, supports the view that in these circumstances family life can properly be said to have been enjoyed for these last three years.
  38. Another way of looking at the case is perhaps this. The removal of this appellant cannot realistically be said to interfere with the right to respect for family life, given that the only consequences of removal will be (a) the impossibility of other family members visiting the appellant (although as a countervailing consideration he may be better able -- becase of the constraints on his leaving the UK during his temporary presence here -- to travel from Sri Lanka to visit them in Germany or in some third country where they could meet); and (b) (the point which seems to have so impressed the adjudicator) the greater expense of phone conversations between Sri Lanka and Germany than between the United Kingdom and Germany.
  39. Either way, in common with Lord Justice Sedley and Lady Justice Arden, I am satisfied that the IAT had no alternative but to allow the Secretary of State's appeal against the adjudicator's determination, and that accordingly the present appeal falls to be dismissed.
  40. ORDER: Appeal dismissed. Public funding assessment of the appellant's costs.
    (Order not part of approved judgment)


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