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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834 (30 July 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/834.html
Cite as: [2010] INLR 195, [2009] EWCA Civ 834

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Neutral Citation Number: [2009] EWCA Civ 834
Case No: C5/2009/0351

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
IA058112008

Royal Courts of Justice
Strand, London, WC2A 2LL
30/07/2009

B e f o r e :

LORD JUSTICE RIX
LORD JUSTICE WALL
and
LORD JUSTICE AIKENS

____________________

Between:
ZB (PAKISTAN)

Appellant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

____________________

Mr Rembert de Mello and Mr Tariq Khan (instructed by Messrs Sulton Lloyd, Solicitors, Birmingham) for the Appellant
Ms Samantha Broadfoot (instructed by The Treasury Solicitor, London) for the Respondent
Hearing dates : 24 June 2009

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Aikens :

  1. This is an appeal from the decision of the Asylum and Immigration Tribunal promulgated on 12 November 2008, with the permission of Sedley LJ. It raises an interesting point concerning immigration into the UK by a foreign national and rights under Article 8 of the ECHR. It is: what is the correct approach when someone who is a parent and grandparent claims that she is dependent on a daughter and her family in the UK because of her ill – health? So far as counsel have been able to research, no cases have directly considered this issue in the Court of Appeal or AIT and the Strasbourg jurisprudence on this precise issue is limited.
  2. At the conclusion of the hearing on 24 June 2009, the court announced that the appeal would be allowed and the matter remitted to a differently constituted tribunal, with our reasons to be handed down at a later date. These are my reasons for allowing the appeal.
  3. The Facts.

  4. The appellant is 58 years old. She is a citizen of Pakistan. Her husband, Fazal Dad, who was born in Pakistan on 28 December 1939, came to the UK some time prior to December 1966. ZB arrived in the UK for the first time on 24 July 1966. She and her husband married in the UK on 29 December 1966. Their first child, Parveen, was born in the UK on November 1967. ZB returned to Pakistan on 30 December 1967. In October 1969, ZB returned to the UK with Entry Clearance as a dependent wife. The couple's son, Mazhar Iqbal, was born in the UK on 15 December 1970. A second son, Sajid Ali, was born in the UK on 13 November 1971. On 22 April 1973 ZB returned to Pakistan. Between 1973 and 1985 ZB and her husband had four more children, two sons and two daughters, all of whom were born in Pakistan.
  5. In 1985 ZB applied for Entry Clearance to join her husband in the UK but was refused. In May 1988, a further son was born in Pakistan. In about 2002, ZB's daughter, Pari Naz (who had been born in Pakistan in 1977) went to live in Pakistan with ZB to care for her. Thereafter Pari Naz and ZB were supported financially by ZB's sons living in the UK. On 24 October 2002, ZB's son Mohammed Ali, who was born in Pakistan in 1973, was granted an Entry Clearance to the UK as a spouse with leave to enter until 23 October 2003.
  6. On 22 September 2006, ZB was granted an Entry Clearance to the UK as a visitor with leave to remain until 22 March 2007. ZB returned to Pakistan in January 2007. In September 2007, ZB arrived in the UK under a visitor's visa with leave to stay until 30th January 2008. She was accompanied by her daughter Pari Naz. Since then ZB has lived with her daughter Parveen who is married and has six children, one of whom is disabled.
  7. We were informed by Mr de Mello, who represented ZB before us, that the present position is that ZB's husband, all her children and her 19 grandchildren all live in the UK. He also informed us that seven of ZB's children and all her grandchildren are now citizens of the UK. The eighth child has indefinite leave to remain in the UK.
  8. ZB applied for Indefinite Leave to Remain in the UK as the parent of a person present and settled in the UK on 11 January 2008. The application was refused by the Secretary of State for the Home Department ("SSHD") and the reasons were set out in a letter dated 6 March 2008. The letter stated that ZB did not satisfy the requirements of the Immigration Rules for an application by a parent of a person present and settled in the UK. The letter identified in particular paragraphs 317, 319 and 322 of the Immigration Rules (HC395). The refusal letter also stated that the application had been considered under Article 8 of the ECHR and stated that the SSHD was satisfied that the decision to refuse indefinite leave to remain did not represent a breach of ZB's Article 8 rights.
  9. ZB appealed that decision. The appeal was heard by an AIT chaired by Immigration Judge Mogridge. He upheld the decision, but did not consider the Article 8 issues. Reconsideration was ordered with regard to the Article 8 issues. The reconsideration was heard by Senior Immigration Judge Allen and Immigration Judge Chohan on 7 October 2008.
  10. The determination of that tribunal was promulgated on 12 November 2008. It dismissed the appeal. The tribunal's view is summarised in the final sentence of the last full paragraph of its determination, paragraph 43. The tribunal said:
  11. "We therefore conclude that even bearing in mind all the interests of the family in maintaining family life with the appellant to the extent to which they have one, her removal would not be disproportionate bearing in mind that to the extent to which there is any family life between her and any of them that it cannot be continued in the same way in which it has existed until September 2007 when she came to the United Kingdom most recently".
  12. It is the submission of the appellant that the approach of the AIT to the Article 8 issues was wrong and its conclusions on the facts perverse. The SSHD submits that the AIT did not make any error of law in dealing with the Article 8 issues.
  13. The detailed findings of the AIT

  14. At the hearing on 7 October 2008, the AIT heard evidence from ZB, her daughter Parveen and ZB's husband. The AIT also had some medical evidence about the health of ZB and of her husband. A letter from ZB's GP stated that she suffered from insulin dependent diabetes and had suffered a fracture to her right ankle which had necessitated her admission to hospital and had limited her mobility. However, the ankle injury had healed. The AIT found that ZB's medical problems were restricted to her being an insulin dependent diabetic. Otherwise the tribunal found that there had been a significant exaggeration of ZB's health problems at the hearing before then: see paragraph 38. The tribunal accepted the medical evidence concerning Fazal Dad and found that he suffered from hypertension, digestive system disease, ischaemic heart disease, mixed hyperlipidaemia and mental disorders and that he had experienced a heart attack in the past.
  15. With regard to the "family life" of ZB, for the purposes of her claim to remain in the UK on Article 8 grounds, the tribunal considered this in the first place under three separate headings. First, it dealt with the "family life" (for Article 8 purposes) between ZB and her husband. The tribunal's conclusion was that it could not be said that there was "family life" between them, "bearing in mind the fact that for a very large part of their married life, they have lived apart and do not live together except infrequently in the United Kingdom"; see paragraph 40. The reference to living together infrequently in the UK is based on the fact that it was the evidence of Fazal Dad and ZB that Fazal Dad lived in a separate flat where his wife would come to him for two or three days a week. When she did so, her daughter, Parveen, came to look after her.
  16. The tribunal also found that the removal of ZB to Pakistan would not be disproportionate in respect of her relationship with her husband. The tribunal held, in paragraph 40 of its determination that: "…she would be able to return to Pakistan and resume the married life that in essence she has had with him for most of the time they have been married, involving periodic written and other contact and other forms of communication perhaps visits also". The AIT rejected a submission that Fazal Dad would be unable to visit ZB in Pakistan if she returned there. It also concluded (in paragraph 40): "Even if [Fazal Dad] is unable to do so, it does not appear to us to be disproportionate for their family life to be carried on in the way in which it has been for a number of years by means of presumably letter, telephone and forms of communication".
  17. The tribunal next dealt with "the question of family life between the appellant and her daughter". It set out what I think it regarded as the legal test for deciding whether any Article 8 issues arose at all. It said (paragraph 41): "Parveen is of course an adult, and there must be shown to be a particular degree of dependency for there to be said to be family life between a parent and their (sic) adult child". The tribunal stated that, given its conclusion on the state of the health of ZB, it did not accept that "…the degree of dependency that is claimed to exist between Parveen and the appellant does in fact exist": paragraph 41. The tribunal accepted that ZB lived with Parveen and that she was cared for by Parveen "…in the sense of regularly providing insulin injections and in other respects looking after her." But it concluded that the appellant's needs were not such as to require "…anything beyond the normal dutiful responsibilities of a married woman with six children towards her middle – aged mother who is living with her": paragraph 41.
  18. Accordingly, the tribunal concluded that there was, for Article 8 purposes, no family life between Parveen and ZB.
  19. The tribunal then considered the argument that had been raised that there was (for Article 8 purposes) "…family life…in general also between the appellant and the rest of her children and grandchildren". It concluded that if ZB returned to Pakistan then she would return to the family life that she had had with her children, other than Pari Naz, (who had looked after ZB in Pakistan until 2007) and with her grandchildren over a number of years. So, if ZB returned to Pakistan then "…the kind of contact she has had with them over a number of years can continue": paragraph 42. The tribunal therefore concluded that the relationship that ZB had with the rest of her family did not, for Article 8 purposes, amount to family life, but if it did, "her removal would not be disproportionate".
  20. It is, I think, noteworthy, that the tribunal does not, in fact, make any findings of fact on what type of relationships that ZB has had with her children and grandchildren in general since she has been in the UK. So there is no specific finding of fact on which the tribunal could base its conclusion that the relationship between ZB and the rest of her family in the UK did not amount to family life for the purposes of Article 8. In the final paragraph of its determination (paragraph 43), the tribunal noted it was not argued that Pari Naz had the kind of relationship with her mother that her sister, Parveen, had; nor that there was "…the necessary element of dependency in [Pari Naz's] case that would have to be shown above and beyond what is normal between adult child and parent…".
  21. The tribunal then summarised its conclusion at the end of paragraph 43 in the terms I have already set out above.
  22. Submissions of the parties on the appeal

  23. Mr de Mello submitted that the AIT's approach to the issue of family life for the purposes of Article 8 was wrong in law and that it had made untenable findings of fact concerning the family life of the appellant. First, the AIT should not have attempted to analyse the issue of whether there was a family life for the purposes of Article 8 by considering the appellant's relationship with different members of her family as separate issues. Secondly, the AIT was wrong to conclude that there was no family life between the appellant and her husband simply because they have not lived together for many years, except when she visited the UK. Thirdly, the conclusion that there was no family life between the appellant and her daughter Parveen, was, given the admitted facts, perverse. Fourthly, the AIT did not take proper account of the fact that all the appellant's family was now in the UK. Fifthly, the AIT failed to apply the principle that it will rarely be proportionate to uphold an order to remove one spouse if there is a close and genuine bond with the other and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal. Lastly, the AIT failed to consider whether it would be proportionate to remove the appellant, given the family background overall and the current relationship of the family in the UK over the period from September 2007 to October 2008.
  24. Ms Broadfoot accepted that the appellant's relationship with her family must be considered as a whole. She accepted that she could not defend the AIT's conclusion that there was no family life between the appellant and her husband. However, she submitted that the AIT's conclusion on the relationship between the appellant and Parveen was a finding of fact. Therefore, she submitted, this court must heed the observations of Baroness Hale of Richmond in AH (Sudan) v SSHD,[1] viz. that the AIT's conclusion was a finding of fact by an expert tribunal which had heard the evidence and so should be respected unless it is quite clear that it has misdirected itself on the law. Ms Broadfoot submitted that the AIT did, in fact, consider the family relationships as a whole in its full decision. Alternatively, if the AIT concluded that none of the bipartite relations "engaged" Article 8, it could not, logically, have come to a different conclusion if all had been considered together.
  25. Further, Ms Broadfoot submitted that even if the conclusion of the AIT on "family life" for the purposes of Article 8 was incorrect, its conclusion that the appellant should be removed was both reasonable and proportionate. In this regard, Ms Broadfoot submitted that the appellant could not meet the requirements of the Immigration Rules; had never intended to return to Pakistan; must have deliberately attempted to manipulate and circumvent the normal system of immigration control; had members of her family in Pakistan and had not lived in the UK long since her arrival in 2007.
  26. The law

  27. I will consider this under three sub – headings. First, the statutory provisions concerning immigration, the provisions of Article 8 of the ECHR and the statutory rights of appeal against immigration decisions. Secondly, I will attempt to summarise the law on the correct approach of this court to cases where removal from the UK is resisted by relying on Article 8 rights. Lastly, I will refer to the cases where the courts have considered Article 8 rights where, on the facts of the case, adult members of a family are particularly involved.
  28. The requirements to be met by a person seeking Indefinite Leave to Remain as the parent of a person who is present and settled in the United Kingdom are contained in 317 and 322(7) of the Immigration Rules. These provide:
  29. "317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent… of a person present and settled in the United Kingdom are that the person:
    (i) is related to a person present and settled in the United Kingdom in one of the following ways…
    (e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; …
    And…
    (v) has no other close relatives in his own country to whom he could turn for financial support; …"
    ………..
    322.
    ……….
    "Grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused…
    (7) failure by the person concerned to honour any declaration or undertaking given orally or in writing as to the intended duration and/or purpose of his stay;"
  30. Article 8 of the ECHR provides:
  31. "1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. …….."
  32. The appellant has a right of appeal from the decision of the AIT on a point of law pursuant to Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). This provides:
  33. "82. Right of appeal: general
    (1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
    (2) In this Part "immigration decision" means—
    (a) refusal of leave to enter the United Kingdom;
    ………………….
    (d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, "
  34. The grounds of appeal must be one of those set out in section 84(1) of the 2002 Act. In this case two grounds are relied on. The first is paragraph (e), ie. that the decision "…is otherwise not in accordance with the law". The second is paragraph (g), ie. that the removal of the appellant from the UK in consequence of an immigration decision"…would breach the United Kingdom's obligations under…section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights".
  35. The proper approach of the courts to cases where removal is resisted by relying on Article 8 rights has been summarised by the House of Lords in R (Razgar) v Secretary of State for the Home Department[2] and confirmed by their Lordships in EB (Kosovo) v Secretary of State for the Home Department.[3] The approach was posed as a series of questions to be considered by the fact finding tribunal. The House of Lords said that the questions were likely to be:
  36. "(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect of his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? (3) If so , is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
  37. In EB (Kosovo) v SSHD, Lord Bingham approved[4] the statement of Wall LJ in Senthuran v Secretary of State for the Home Department[5] that:
  38. "…the recognition in Advic v United Kingdom (1995) 20 EHRR CD125 that, whilst some generalisations are possible, each case is fact – sensitive places an obligation on both adjudicators and the Immigration Appeal Tribunal to identify the nature of the family life asserted and to explain, quite shortly and succinctly, why it is that article 8 is or is not engaged in a given case".
  39. In EB (Kosovo), Lord Bingham emphasised three other important points. First,[6] he reaffirmed the acknowledgement of the House of Lords in Huang v Secretary of State for the Home Department,[7] that weight must be given to the general administrative desirability of applying known rules of immigration control that are workable, predictable, consistent and fair as between one applicant and another and the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory. He also emphasised, under this heading, the need to discourage fraud, deception and deliberate breaches of the law. Secondly,[8] he reaffirmed the point made in Huang[9] that the Strasbourg jurisprudence recognised that Article 8 imposes on contracting states not only a negative duty to refrain from unjustified interference with a person's right to respect for his family but also a positive duty to show respect for it. Furthermore, he noted that the jurisprudence recognised what is perhaps obvious, ie. that a person's "…family or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially". Lord Bingham's quotation from the opinion of the judicial committee in Huang (which he had delivered), continues:
  40. "There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family , the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant".
  41. Thirdly, in EB (Kosovo), Lord Bingham affirmed[10] what the judicial committee had stated in Huang[11] ie. that in most cases where the applicant complained of a violation of Article 8 rights and the interference of lack of respect for those is of sufficient seriousness to engage Article 8, the crucial question is likely to be whether the interference or lack of respect is proportionate to the legitimate ends sought to be achieved by the law invoked to do so. If "an appellate immigration authority" concludes that the refusal of leave to enter or remain "…in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8" , then the refusal is unlawful. There is no need to ask in addition whether the case meets a test of exceptionality.
  42. In EB (Kosovo), Lord Bingham also said that, in reaching its conclusion, an appellate immigration authority must make its own judgment, based on the facts and circumstances of the individual case and guided by the weight that the Strasbourg court has placed on various factors. He continued[12]:
  43. "It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search of a hard – edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires".
  44. In Beoku – Betts v Secretary of State for the Home Department,[13] the House of Lords held that where a claimant for asylum alleged that a refusal to grant it would be a breach of his Article 8 rights in respect of his family life, the appellate authorities should consider the complaint with reference to the family unit as a whole. If his proposed removal would be disproportionate in that context then, in the words of Lord Brown of Eaton – under – Heywood,[14] "…each family member was to be regarded as a victim". Therefore, the approach to the claimant's appeal under section 65 of the Immigration and Asylum act 1999,[15] should be on that basis. Baroness Hale of Richmond, in agreeing with Lord Brown, said:
  45. "To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed."
  46. In relation to Article 8 rights as between adult members of a family, the Commission of Human Rights stated, in S v United Kingdom[16] that:
  47. "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".
  48. In Navaratnam Kugathas v Secretary of State for the Home Department,[17] Sedley LJ described that decision of the Commission as "now elderly", but he held that its principles were still correct. In her judgment in that case, Arden LJ said:[18]
  49. "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 Balkandiali 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….".
  50. However, in that case this court held that, on the facts, the applicant had not established that there was a family life within the meaning of Article 8.
  51. The principles in the Kugathas case were applied by this court in the recent decision of JB (India) and others v Entry Clearance Officer.[19] In that case, the court was considering whether there were sufficient of a family life between three adult siblings who said that there was dependency on their mother who had settled in the UK. This court held that, applying the principles in Kugathas, the tribunal's decision on reconsideration that there was no family life between the three adult appellants and their mother and so no interference with family life for the purposes of Article 8 was "…plainly correct".[20]
  52. At the end of the hearing before us, we invited both Mr de Mello for the appellant, and Ms Broadfoot, for the SSHD, to undertake some further research to see if there was any Strasbourg or domestic case law on the specific issue of the approach to Article 8 rights when an older relative, in particular a parent, asserts that he or she is dependent on a younger relative, in particular a son or daughter. Mr de Mello and Ms Broadfoot have drawn our attention to a number of cases, for which we are most grateful. I need only refer to two.
  53. The first is Advic v The United Kingdom.[21] In that case the European Commission of Human Rights considered the case of a citizen of the former Yugoslavia who lived in Scotland for some years, but had subsequently lived in both Bosnia and Poland. His brother and two adult sons lived in Scotland. His application for entry clearance to the UK was rejected and so were his appeals. In its reasons for rejecting that particular application as inadmissible, the European Commission made the general statement that the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 of the ECHR without evidence of further elements of dependency, involving more than the normal, emotional ties. On the facts of that case it held (i) that it must take account of the fact that the applicant's adult children lived in the UK, but also (ii) that the applicant was not financially dependent on either his sons or his brother. It concluded, on the facts, that there was no breach of his Article 8 rights.
  54. The second case is MT (Zimbabwe) v SSHD.[22] This court held that the immigration judge had been entitled to find, on the facts, that there was family life for Article 8 purposes between an adult on the one hand and her cousin, his wife and their children on the other. It held (at paragraph 12) that the immigration judge had correctly applied the test in Advic which I have set out above and her findings justified a conclusion that there were "more than the normal emotional ties".[23]
  55. Analysis and conclusion

  56. The basis of the appellant's resistance to removal is that it would disproportionately interfere with her Article 8 rights. Therefore, the AIT would have been wise to follow the series of questions posed by Lord Bingham in Razgar and confirmed by him in EB (Kosovo). I will do so in considering whether the AIT erred in law. I think that the first and second questions can be taken together. The first is: will the proposed removal be an interference by a public authority with the exercise of the appellant's right to respect of her family life? If the answer is "yes", the second question is: will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
  57. I appreciate that these are both, ultimately, questions of fact and that each case is "fact sensitive". However, I have concluded that the AIT's approach was wrong as a matter of law. First, in my view it paid little regard to the fundamental point, made in Huang, that the Strasbourg jurisprudence imposes on contracting states a positive duty to show respect for family life. Secondly, the AIT's reasons do not appear to demonstrate a proper appreciation of the basic proposition that a person's family or extended family is the group on which many people most heavily depend socially, emotionally and often financially. Thirdly, these failures led the AIT into the error of not looking at the issue of whether family life existed in this group as a whole and then assessing the appellant's relationship within it. Instead, in the words of Sedley LJ (who gave permission to appeal in this case) the AIT divided family life up into segments and proceeded, for each segment, to find family life did not exist for Article 8 purposes.
  58. Fourthly, the AIT did not examine the relationship between this 59 year old mother and her daughters upon the correct basis. I accept that, when considering family life for Article 8 purposes, where a court or tribunal is analysing the relationship of a parent and adult children, something more than normal emotional ties between them has to be shown. But where, as here, the focus is on the parent, the issue must be: how dependent is the older relative on the younger ones in the UK and does that dependency create something more than the normal emotional ties? Although this court is not finding facts, it is indisputable that the appellant is an insulin dependent diabetic who needs to be cared for and who is either wholly or largely financially dependent on her family in the UK.
  59. Fifthly, the AIT clearly erred in its finding that there was no family life as between the appellant and her husband, as Ms Broadfoot rightly conceded in argument. Sixthly, the AIT erred in not properly taking into account the fact that the appellant's husband, five sons, three daughters and 19 grandchildren all live in the UK and that her husband, seven of her children and all her grandchildren are British citizens.
  60. Accordingly, I would hold that the AIT erred in law in arriving at its conclusion that there was no family life for the purposes of Article 8. In my judgment, on the facts that were found by the AIT, there may be family life of this family unit for Article 8 purposes and the proposed removal of the appellant may have consequences of such gravity as potentially to engage the operation of Article 8.
  61. I will assume that the answers to the third and fourth questions posed by Lord Bingham at paragraph 17 of Razgar would be "yes".
  62. That leaves the fifth and last question: would interference in the family life of the appellant be proportionate to the public end sought to be achieved by operating the immigration controls that are in place for good administrative and legal reasons? In my view the AIT failed to grapple properly with this question and so erred in law. On the facts before us it is, I think, clear that the appellant's close family is here in the UK. She is dependent on her daughter Parveen for care and is, apparently, wholly or largely dependent on her sons in the UK for financial assistance. It is, of course, for the tribunal to consider this and also whether it is realistic to consider that her husband, who suffers considerable ill – health, could visit her in Pakistan, were she to be removed there.
  63. The AIT did not ask, as in my view it should have done, first: looking at the family as a whole, can it reasonably be expected that the life of the family can be enjoyed elsewhere? Secondly, it did not weigh the answer to that question against all considerations in favour of removal, such as any failure to comply with any requirements of the Immigration Rules, possible deception on entry in 2007 and so forth. Thirdly, therefore, it could not properly come to a final conclusion on where the balance lay for the purposes of Article 8(2). (See the statement of Lord Bingham in EB (Kosovo) quoted in paragraph 28 above).
  64. For these reasons, I have concluded that the decision of the AIT was not in accordance with the law. Therefore, the appeal must be allowed and the matter remitted to another tribunal for reconsideration.
  65. Lord Justice Wall:

  66. I agree.
  67. Lord Justice Rix:

  68. I also agree.

Note 1    [2008] 1 AC 678 at para 30.    [Back]

Note 2    [2004] 2 AC 368 at para 17    [Back]

Note 3    [2008] 3 WLR 178 at para 7    [Back]

Note 4    At para 9    [Back]

Note 5    [2004] 4 All ER 365 at para 15    [Back]

Note 6    At para 8 of EB (Kosovo)    [Back]

Note 7    [2007] 2 AC 167 at para 16    [Back]

Note 8    At para 11 of EB (Kosovo)    [Back]

Note 9    At para 18 of that case.    [Back]

Note 10    At para 11    [Back]

Note 11    At paras 18 and 20    [Back]

Note 12    At para 12    [Back]

Note 13    [2009] 1 AC 115    [Back]

Note 14    At para 43    [Back]

Note 15    Now replaced by sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002.    [Back]

Note 16    (1984) 40 DR 196    [Back]

Note 17    [2003] EWCA Civ 31, [2003] INLR 170    [Back]

Note 18    At para 25.    [Back]

Note 19    [2009] EWCA Civ 234    [Back]

Note 20    Paragraphs 17 and 22 of the judgment of Sullivan LJ.    [Back]

Note 21    [1995] ECHR 57    [Back]

Note 22    [2007] EWCA Civ 455    [Back]

Note 23    Para 13 of the judgment of Buxton LJ.    [Back]


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