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||Neutral Citation Number:  EWCA Civ 1757
||Case No: C5/2016/1510
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Monson
 UKAITUR VA051732014
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE SALES
LORD JUSTICE SINGH
|| Secretary of State for the Home Department
||- v -
||Chioma Goodness Onuorah
John-Paul Waite (instructed by Government Legal Department) for the Appellant
Michael Biggs (instructed by Gans & Co LLP) for the Respondent
Hearing date : 12 October 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Singh :
- This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") promulgated on 7 January 2016. By that decision the UT dismissed the appeal by the Entry Clearance Officer in Abuja, Nigeria ("ECO") against the decision of the First-tier Tribunal ("FTT") dated 22 April 2015. Permission to appeal to this Court was granted by UT Judge Kekic on 4 March 2016.
- By its decision the FTT allowed the present Respondent's appeal against the refusal of entry clearance dated 24 July 2014. The ECO had refused the application for a visa to visit the Respondent's brother in the United Kingdom for four weeks. The only ground of appeal which was available to an applicant in such circumstances was that there was a breach of section 6 of the Human Rights Act 1998 ("HRA") and in particular a breach of Article 8 of the Convention rights: see section 88A, read with sections 82(1) and 84(1)(c), of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That argument succeeded before the FTT.
- The UT decided that there was no error of law in the FTT's decision and so dismissed the ECO's appeal.
- The Secretary of State now appeals to this Court and argues that the FTT did indeed err in law, in particular in finding that there was "family life" or "private life" for the purpose of Article 8 as between the Respondent and her brother.
- The Respondent is a national of Nigeria and was born there on 17 March 1985. The Respondent is married to her husband, who lives in Nigeria. She has employment there.
- The Respondent's brother, Franklin Chinedu Onuorah, who was her sponsor for the purpose of her visa application, has lived in the United Kingdom for 11 years and is a naturalised British citizen. He is married and has two young children in this country. Both the Respondent and her brother are adults.
- The Respondent's application for entry clearance was made on 17 July 2014. It was considered by the ECO and refused on 24 July 2014. The application was considered under para. 41 of the Immigration Rules (HC 395). The ECO was not satisfied, on the balance of probabilities, that the Respondent was genuinely seeking entry as a visitor for a limited period not exceeding 6 months or that she intended to leave the UK at the end of her visit. Accordingly the ECO was not satisfied that she met all of the requirements of para. 41.
- After that initial refusal the decision was reviewed by the Entry Clearance Manager ("ECM"). However, the ECM decided to uphold the refusal in a decision dated 20 November 2014.
The Decision of the First-tier Tribunal
- The decision of the FTT was taken by Judge Manuell. The Judge noted that, in relation to applications for entry clearance made after 25 June 2013, it was no longer possible in "family visitor" cases for a person to appeal. He observed that the right of appeal to the FTT is now limited to alleged discrimination under the Equality Act 2010 and to Article 8 issues. It is only the latter that are relevant to the present case.
- Mr Onuorah gave evidence before the FTT and adopted his witness statement dated 9 April 2015. He said that none of his family had been to see him in the UK in the 11 years he had lived here. He said that it was inconvenient for the Respondent's husband to travel and so he was happy for her to make the trip alone. The Judge was satisfied that Mr Onuorah was an honest witness and accepted his evidence in full. The Judge was also satisfied that the Respondent did in fact intend to return to Nigeria at the conclusion of her brief visit to the UK. Accordingly, if there had still been a right of appeal against the decision to refuse under para. 41 of the Immigration Rules, the Judge would have had no hesitation in allowing it: see para.  of the decision.
- At para. 11 the FTT noted that the Respondent lives in Nigeria and so has no family life in the UK, "or at least one which is maintained at a distance." However the FTT was of the view that there was "rather more to the appeal than that."
- The FTT said that there was at least one British citizen directly affected by the decision, namely the Respondent's brother, as well as his British citizen children. It continued, at para. :
"… The particular form of family life which the Appellant [the present Respondent] enjoys with her brother is necessarily limited as they are both adults with their own families but nonetheless the connection between them is real. The Tribunal finds on the facts of the appeal that the refusal decision is an interference with the family life of persons in the United Kingdom. The fact that it is also an interference with the Appellant's family life is not relevant as she is not present in the United Kingdom."
- Mr Michael Biggs, who appeared before this Court on behalf of the Respondent, accepts that that last sentence was wrong, since (he submits) there is authority from the Supreme Court that there is a single family life in such cases, which should not be sub-divided in this way: see Beoku-Betts v Secretary of State for the Home Department  1 AC 115. However, he submits that the error was immaterial because what is important is that the Judge found there to have been family life as between the Respondent and Mr Onuorah for the purposes of Article 8.
- At para.  the FTT stated:
"The Entry Clearance Officer's decision is in accordance with the law, in the sense that there was power to make it. The key issue in the … analysis for the Tribunal is proportionality … while there was power to make the decision, the Tribunal finds that the decision was incorrect and that the Appellant's application should have been allowed. That must have a major bearing on proportionality, in that the Tribunal finds that the Appellant would have complied and will comply with her visa conditions. The public interest under Article 8.2 ECHR is satisfied because there was no evidence to show that the Appellant is likely to breach her visa conditions or otherwise infringe United Kingdom law if she is permitted to visit the United Kingdom for a brief period as she declared she intended."
- Accordingly, at para. , the FTT allowed the appeal by the present Respondent. Further it made a direction under section 87 of the 2002 Act to require the ECO to issue her with a UK Visit Visa in the category for which she had paid the correct fee.
- The ECO sought to appeal against that decision to the UT. Although permission was initially refused on 29 June 2015 it was later granted on 13 August 2015.
The Decision of the Upper Tribunal
- The appeal before the UT was heard by Deputy UT Judge Monson.
- At para.  the UT noted that:
"It is established case law that family life within the meaning of Article 8 would not normally exist between adult siblings, parents and adult children. Where family life does not exist, generally Article 8 will not be engaged."
In the same paragraph it referred to the decision of this Court in Kugathas v Secretary of State for the Home Department  EWCA Civ 31;  INLR 31. In particular it noted that "unless something more exists than mere emotional ties" family life will not be established between an adult and other siblings.
- At para.  the UT noted that none of the criteria identified in authorities such as Kugathas appeared to be met in the present case, because the Respondent was found to have strong ties to Nigeria in the form of her marriage.
- However, from para.  of the judgment, the UT stated that two different themes are discernible in the domestic jurisprudence relating to Article 8 claims in the context of family visitors. It suggested that there was support for "the restrictive approach" in some decisions of the UT but that there was also support for "a more elastic approach". At para.  the UT said:
"Where a person is seeking entry clearance for the purpose of settlement, and he cannot bring himself within the relevant requirements of the applicable rules, there is no good reason to depart from the orthodox requirement that for such a person to maintain a family life claim outside the Rules, the Kugathas dependency criteria must be met." (My emphasis)
- At para.  the UT stated:
"However, where a person is only seeking entry clearance for a limited purpose such as a short visit, satisfaction of the Kugathas dependency criteria is wholly antithetical to such a person being granted admission under the Rules, as the incentive for him to return to his home country is objectively much weaker than is the incentive for him to remain in this country with the family member on whom he is emotionally dependent. In addition, provided that the applicant complies with the requirements of a visit visa, there is no potential downside from an immigration control perspective, whereas a person admitted for the purposes of settlement is potentially a future burden on the taxpayer." (My emphasis)
- In my view, the error disclosed by that passage is that the UT confused the concept of justification for any interference with the right to respect for family life (in which consideration of matters such as immigration control and potential burdens on the UK taxpayer might be relevant) with the logically prior question of whether an applicant is able to get through a gateway into Article 8 in the first place. That prior question depends, for present purposes, on whether it has been established that there was family life (or private life) between the relevant persons.
- At para.  the UT stated:
"In conclusion, I am not persuaded that on the current state of the law Judge Manuell misdirected himself in finding that Article 8(1) ECHR was engaged (on family and/or private life grounds), and in thus answering questions 1 and 2 of the Razgar test in favour of the claimant. There was sufficient evidence before him to find that the prospective interference was more than technical or inconsequential. The claimant did not have an established family life with the sponsor and his family in the United Kingdom, as the Judge acknowledged. But this was not an essential requirement, contrary to what is asserted in the grounds of appeal."
It will be noted that, in that passage, the UT referred to "private life" and not only "family life" without elaborating further on the basis for that finding. In the appeal before this Court, Mr Biggs relies on both the concept of "private life" and the concept of "family life."
- At para.  the UT stated:
"Once the Judge found that Article 8(1) was engaged, as it was open to him to do, there was no error in him failing to balance the strength of the claim under Article 8(1) against the public interest considerations arising under Article 8(2)."
- At para.  the UT stated:
"… Although the family ties between the claimant and the sponsor were weak (having regard to the fact that neither was emotionally dependent on the other), there was no countervailing public interest in maintaining the claimant's exclusion as a temporary visitor."
- Accordingly the UT concluded that the decision of the FTT did not contain an error of law and the appeal by the ECO would be dismissed.
- Section 84(1) of the 2002 Act provides that an appeal under section 82(1) against an immigration decision must be made on one or more of the grounds which are then set out. For present purposes, as section 88A makes clear, the only relevant ground is under para. (c): that the decision is unlawful under section 6 of the HRA.
- Section 6(1) of the HRA makes it unlawful for a public authority to act in a way which is incompatible with a person's Convention rights, as set out in Sch. 1. Article 8, which is to be found in Sch.1, provides:
"(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"
- Of the rights in Article 8, two are relied upon by Mr Biggs on behalf of the Respondent in the present case: the right to respect for family life and the right to respect for private life. I will address each in turn.
The Right to Respect for Family Life
- The difficulty which the Respondent faces in the present case is that this Court has authoritatively held that the ambit of "family life" does not embrace a situation such as the present: see Entry Clearance Officer, Sierra Leone v Kopoi  EWCA Civ 1511, in which the main judgment was given by Sales LJ, with whom the other members of the Court agreed.
- At paras. - Sales LJ said:
"17. The leading domestic authority on the ambit of 'family life' for the purposes of Article 8 is the well-known decision of this court in Kugathas v Secretary of State for the Home Department  EWCA Civ 31;  INLR 31. The court found that a single man of 38 years old who had lived in the UK since 1999 did not enjoy 'family life' with his mother, brother and sister, who were living in Germany as refugees. At para.  Sedley LJ accepted as a proper approach the guidance given by the European Commission for Human Rights in its decision in S v United Kingdom (1984) 40 DR 196, at 198:
'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.'
He held that there is not an absolute requirement of dependency in an economic sense for 'family life' to exist, but that it is necessary for there to be real, committed or effective support between family members in order to show that 'family life' exists (); 'neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together', sufficient (); and the natural tie between a parent and an infant is probably a special case in which there is no need to show that there is a demonstrable measure of support ().
18. The judgments of Arden LJ and Simon Brown LJ were to similar effect. Arden LJ also relied on S v United Kingdom as good authority and held that there is no presumption that a person has a family life, even with members of his immediate family () and that family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties, such as ties of dependency ().
19. Kugathas remains good law: see e.g. R (Britcits) v Secretary of State for the Home Department  EWCA Civ 368,  and  (Sir Terence Etherton MR),  (Davis LJ) and  (Sales LJ). As Sir Terence Etherton MR pithily summarised the position at , in order for family life within the meaning of Article 8(1) to be found to exist, 'There must be something more than normal emotional ties'."
- Later, at para. , Sales LJ said:
"In my view, the shortness of the proposed visit in the present case is a yet further indication that the refusal of leave to enter did not involve any want of respect for anyone's family life for the purposes of Article 8. A three week visit would not involve a significant contribution to 'family life' in the sense in which that term is used in Article 8. Of course, it would often be nice for family members to meet up and visit in this way. But a short visit of this kind will not establish a relationship between any of the individuals concerned of support going beyond normal emotional ties, even if there were a positive obligation under Article 8 (which there is not) to allow a person to enter the UK to try to develop a 'family life' which does not currently exist."
- On behalf of the Respondent Mr Biggs seeks to distinguish Kopoi on the ground that that case did not concern a member of a person's immediate family. The difficulty with that submission is that the case of Kugathas, which has been approved subsequently by this Court and applied in cases such as Kopoi, did on its facts concern a member of a person's immediate family.
- In recognition of that point Mr Biggs seeks to distinguish Kugathas on the basis that that case concerned an application for settlement in this country, whereas the present case concerns a short visit. That was, as I have already indicated in the passages quoted above from the judgment of the UT in the present case, the basis on which the UT also sought to distinguish this case from the Kugathas line of authority.
- In my view, that is an insufficient basis for distinguishing Kugathas. This is for two reasons. First, as a matter of principle, the question whether there is "family life" for the purpose of Article 8 is a logically prior question and cannot depend on the purpose for which an application for entry clearance is made. Secondly, the shortness of the proposed visit is, if anything, an indication that the refusal of leave to enter did not involve any want of respect for the Respondent's family life for the purpose of Article 8: see Kopoi at para. 30 (Sales LJ), which I have quoted above.
- Mr Biggs reminded this Court of the underlying statement of principle in the Strasbourg case law which had been approved by this Court in Kugathas. In particular he drew our attention to the decision of the former European Commission for Human Rights in S v United Kingdom (1984) 40 DR 196, at 198. He emphasised "necessarily" in the sentence:
"Relationships between adults … 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." (Emphasis added)
However, in my view, this Court was well aware of that principle when it approved that passage in Kugathas, in para.  (Sedley LJ), and in the subsequent recent decision of this Court in Britcits.
- In my view, the legal position has now been authoritatively settled by this Court. Although this Court has an obligation under section 2(1) of the HRA to take into account any relevant decision of the European Court of Human Rights or the former European Commission for Human Rights, we are normally bound by former decisions of this Court, in accordance with the domestic law principle of precedent.
- In any event, I did not find persuasive the submission made by Mr Biggs on the basis of other Strasbourg cases that, in the present context, any different result should arise.
- Mr Biggs placed particular reliance on the decision of the Grand Chamber in Khoroshenko v Russia (Application No. 41418/04, judgment of 30 June 2015,  ECHR 637). That case concerned the prison regime during the first 10 years of the applicant's post-conviction detention in a correctional colony. Inevitably such detention entailed restrictions on the types, frequency and duration of visits, for example with members of the applicant's family. Mr Biggs draws attention to the fact that one of the members of the family concerned was the applicant's brother: see para. 107 of the judgment. Mr Biggs submits that, if the principle is as restricted as might appear at first sight from the decision in Kugathas and the Strasbourg case law on which it is based, then it is difficult to see how there could have been "family life" in Khoroshenko. He submits that inevitably there could not be a relationship of dependency, since the long-term detention of a prisoner will mean that he is not able to support the sibling concerned.
- However, in my view, the decision in Khoroshenko needs to be understood in its particular context. I note that the respondent government in that case did not dispute that the prison regime concerned constituted an interference with the applicant's private and family life: see paras.  and  of the judgment. Nevertheless, the Court clearly approved that concession and Mr Biggs is entitled to submit that that can only have been on the basis that the Court did implicitly accept that there was family life. However, as the Court put it at para. :
"Detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner's right to respect for family life that the authorities enable him, or if need be, assist him in maintaining contact with his close family …"
- That was said in the context of coercive measures taken by a state which inevitably prevent normal contact with members of a person's family. That has nothing to do with the context of immigration control. In the present sort of context, the state has not said that the Respondent cannot have contact with her brother, only that she does not have leave to enter the UK for that purpose. There is no evidence as to why her brother could not visit the Respondent in Nigeria or why they could not, for example, have a holiday together in some third country. In the present context, I can see no reason to think that the state has shown the "want of respect", as this Court put it in Kopoi, that is required for the purpose of Article 8.
- Mr Biggs also relies on the decision of the European Court of Human Rights in Sabanchiyeva v Russia (2014) 58 EHRR 14. However, again, in my view, the context of that case was completely different. That case concerned relatives of deceased insurgents who died during or soon after a terrorist attack. They were informed that their relatives would not be returned for burial at least until the investigation had been completed. Mr Biggs points to the fact that at least one of the applicants (the 19th applicant in that case) was found by the Court to have developed a "private life" with one of the deceased even though there had been only one month of cohabitation and occasional meetings in secret over the next 8 months: see para. 119 of the judgment. The Court considered that, although that may not be sufficiently lasting and stable so as to fall within the scope of a "family life", there was little doubt that there existed a "private life" between them.
- Be that as it may, I do not consider that that case provides any support for Mr Biggs's submissions in the present context. I note in particular that the nature of the measure that was taken by the state in that case was "particularly severe … in that it completely precluded them [the applicants] from any participation in the relevant funeral ceremonies and involved a ban on the disclosure of the location of the grave, thus permanently cutting the links between the applicants and the location of the deceased's remains": see para. 138 of the judgment.
- As Mr Biggs points out, the Upper Tribunal (Immigration and Asylum Chamber) considered and applied the decision in Sabanchiyeva in Abbasi v Entry Clearance Officer of Karachi  UKUT 463 (IAC): see para.  (McCloskey J, the then President of that Chamber). As McCloskey J pointed out in para. , the European Court of Human Rights in Sabanchiyeva found that there had been a violation of Article 8 "without making any distinction between the private life and family life dimensions." That is indeed a feature of some of the case law to which this Court has been referred.
- No doubt there are some cases in which it is immaterial precisely which of those two concepts is invoked, because it is clear that there has been an interference with at least one of the rights set out in Article 8(1). However, in my view, in the present context it is important to be clear about which gateway into Article 8 a person is able to go through before one reaches later questions such as whether there has been an interference with that right by a public authority or a lack of respect pursuant to a positive obligation which can sometimes be imposed on the state in order to give effect to the rights in Article 8.
- Mr Biggs also relies on the decision of the UT in Abbasi itself in support of his submission in the present case. I note that the decision of this Court in Kugathas was not referred to in that case. In my view, this is unsurprising, since the factual matrix of the case was very different from the present one. It concerned "matters relating to death, burial, mourning and associated rites": see para.  of the judgment. It is for this reason that the UT referred, at para. , to the decision of the European Court of Human Rights in Sargsyan v Azerbaijan (2011) ECHR 2337. That is a decision to which I will return under the rubric of the right to respect for private life. Although I have no reason to doubt the correctness of the decision of the UT in Abbasi on its facts, I consider that it has no bearing on the present context, which is governed by the principle in Kugathas.
The Right to Respect for Private Life
- Mr Biggs fairly and candidly accepts that he faces an even more uphill struggle in persuading this Court that there was "private life" for the purpose of Article 8 in the present context. He does so in the light of the recent decision of this Court in Secretary of State for the Home Department v Abbas  EWCA Civ 1393, in which the main judgment was given by Burnett LJ (as he then was), with whom the other members of the Court agreed. The important point of principle which arose in that case was formulated by Burnett LJ as follows at para. :
"To what extent does the state have a positive obligation on grounds of private life (where no relevant family life exists) to grant entry clearance for an adult to visit an elderly relative located in the United Kingdom?"
- In Abbas this Court considered the decision of the European Court of Human Rights in AA v UK  INLR 1, and the decisions of this Court in both Kugathas and Singh v Secretary of State for the Home Department  EWCA Civ 630. Having done so Burnett LJ summarised the legal position in the following way, at para. :
"The Secretary of State has been unable to identify any case, still less a settled line of authority, in which the Strasbourg Court has held article 8 in its private life aspect to be engaged in respect of a person outside the Contracting State seeking to enter to develop that private life. Such a conclusion would have a striking effect and undermine the often repeated starting point of the Strasbourg Court that a state has the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. Private life as a concept has a broad reach, by contrast with family life. Even though article 8 is a qualified right (unlike article 3) the prospect of a very large number of individuals relying on private life in support of applications for short and long-term stays would be inevitable. To accept that the private life aspect of article 8 could require a Contracting State to allow an alien to enter its territory would mark a step change in the reach of article 8 in the immigration context. As a matter of principle it would be wrong to do so. As a matter of binding authority on the approach to an expansion of the reach of the ECHR it would be impermissible to do so."
- Recognising that that represents the ratio of that decision, which would be binding on this Court, Mr Biggs submits that Abbas was decided per incuriam. He makes that submission on the basis that there were decisions of the European Court of Human Rights which were apparently not drawn to the Court's attention in Abbas. He says that that may not be surprising since the respondent in that case did not appear and was not represented at the hearing before this Court.
- In particular Mr Biggs places reliance on the decision of the European Court of Human Rights in Sargsyan v Azerbaijan (Application No. 40167/06, judgment of 16 June 2015,  ECHR 588). In that case the Court decided that Article 8 was applicable on the facts and that there had been a continuing breach of the applicant's rights under Article 8: see paras. - of the judgment. However, the facts were very different from those of the present sort of case.
- In that case the applicant's complaint under Article 8 had two aspects: lack of access to his home in Gulistan, which was in Azerbaijan, and lack of access to the graves there of his relative. Leaving aside the question of respect for the home, which is not material in the present case, it is important to see why the Court found there to have been a breach of the right to respect for private life. The Court reiterated, at para. , that the concept of "private life" is a broad term not susceptible to exhaustive definition. Among other things it includes the right to establish and develop relationships with other human beings and the outside world. The Court did not exclude that these notions may extend to certain situations even after death.
- However, it is vital to note that, on the facts of that case, the applicant had submitted evidence, namely a copy of his former Soviet passport and his marriage certificate, which showed that he was born in Gulistan in 1929 and got married there in 1955. Moreover the Court had found it established that the applicant owned a house in Gulistan which still existed: see para. . Furthermore the Court found it established that the applicant had lived in Gulistan for the major part of his life and must therefore have developed most of his social ties there. Later, in the early 1990s, around the time of the collapse of the USSR, the applicant, who was of Armenian ethnic origin, had been forced to leave Azerbaijan and now lived in Armenia. Consequently, in the view of the Court, his inability to return to the village where he had been born and spent much of his life affected his "private life". Finally the Court considered that, in the circumstances of that case, the applicant's cultural and religious attachment with his late relatives' graves in Gulistan might also fall within the notion of "private and family life" (without for this purpose drawing a distinction between those two concepts) see paras. -. Accordingly, the Court held that the impossibility for the applicant to have access to his property in Gulistan or to visit his late relatives' graves there constituted a violation of his rights under Article 8.
- I consider that the facts of Sargsyan are so far removed from those of cases such as Abbas or the present case that the decision provides no assistance at all for Mr Biggs's submissions, even if this Court were free to depart from its own decision in Abbas in accordance with the principle of per incuriam. The question whether that principle does apply in a scenario such as the present is not one on which we heard full argument and, it seems to me, is not straightforward. However, it is unnecessary to decide that point in the present case.
- Mr Biggs relies on the third of the three exceptions to the usual rule that this Court is bound by its own previous decisions which were mentioned by Lord Greene MR in Young v Bristol Aeroplane Co.  KB 718, at 729-730. That exception applies where the earlier decision was given per incuriam. Lord Greene MR gave as an example where a statute or rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.
- In Morrelle Limited v Wakeling  2 QB 289, at 406, Lord Evershed MR said:
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong." (My emphasis)
- As I have already mentioned, it is clear from the language of section 2(1) of the HRA that a relevant decision of the European Court of Human Rights is not binding on domestic courts, although it must be taken into account. It is far from obvious that the principle of per incuriam strictly speaking applies in the present context. However, it is important to refer to two decisions of the House of Lords which were decided after the HRA came into force and which considered the relationship between the domestic doctrine of precedent and the relevance of Strasbourg case law.
- In Kay v Lambeth LBC  2 AC 465, at para. , Lord Bingham of Cornhill described the doctrine of precedent as "a cornerstone of our legal system." He went on to explain that the normal domestic rule should continue to apply even where the Court of Appeal considers that a decision of the House of Lords (now the Supreme Court) is inconsistent with a later decision of the European Court of Human Rights. To that general rule Lord Bingham said that there was one "partial exception." That exception was exemplified by the Court of Appeal's decision in D v East Berkshire Community NHS Trust  QB 558, where this Court refused to follow the earlier decision of the House of Lords in X (minors) v Bedfordshire County Council  2 AC 633. This was because the decision in Bedfordshire had been given before the HRA came into force; there was no reference to the ECHR in any of the opinions; and it was the very same plaintiffs who had failed in the House of Lords who succeeded in their subsequent application to the European Court of Human Rights in Z v United Kingdom (2001) 34 EHRR 97.
- Subsequently, in R (RJM) v Secretary of State for Work and Pensions  1 AC 311, at para. , Lord Neuberger of Abbotsbury summarised the applicable principle as follows:
"Where the Court of Appeal considers that an earlier decision of this House, which would otherwise be binding on it, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then (absent wholly exceptional circumstances) the court should faithfully follow the decision of the House, and leave it to your Lordships to decide whether to modify or reverse its earlier decision. To hold otherwise would be to go against what Lord Bingham decided. As a matter of principle, it should be for this House, not for the Court of Appeal, to determine whether one of its earlier decisions has been overtaken by a decision of the ECtHR. As a matter of practice, as the recent decision of this House in Animal Defenders  AC 1312 shows, decisions of the ECtHR are not always followed as literally as some might expect. As to what would constitute exceptional circumstances, I cannot do better than to refer back to the exceptional features which Lord Bingham identified as justifying the Court of Appeal's approach in East Berkshire  QB 558: see Kay  2 AC 465, para 45."
- As will be noted, that passage concerns the situation where there is a potential conflict between a decision of the House of Lords (or now the Supreme Court) and a decision of the European Court of Human Rights. In RJM, at paras. - Lord Neuberger turned to the situation where there is a potential inconsistency between a decision of the Court of Appeal and a later decision of the European Court of Human Rights. He said:
"65. When it comes to its own previous decisions, I consider that different considerations apply. It is clear from what was said in Young  KB 718 that the Court of Appeal is freer to depart from its earlier decisions than from those of this House: a decision of this House could not, I think, be held by the Court of Appeal to have been arrived at per incuriam. Further, more recent jurisprudence suggests that the concept of per incuriam in this context has been interpreted rather generously: see the discussion in the judgment of Lloyd LJ in Desnousse v Newham London Borough Council  QB 831, paras 71 to 75.
66. The principle promulgated in Young  KB 718 was, of course, laid down at a time when there were no international courts whose decision had the domestic force which decision of the ECtHR now have, following the passing of the 1998 Act, and in particular section 2(1)(a). In my judgment, the law in areas such as that of precedent should be free to develop, albeit in a principled and cautious fashion, to take into account such changes. Accordingly, I would hold that, where it concludes that one of its previous decisions is inconsistent with a subsequent decision of the ECtHR, the Court of Appeal should be free (but not obliged) to depart from that decision." (My emphasis)
- In the present context, we are not faced with precisely the same situation. This is because the decision of the European Court of Human Rights on which Mr Biggs relies pre-dated the recent decision of this Court in Abbas and was not a "subsequent decision." However, it is unnecessary to delve more deeply for present purposes into the exact circumstances in which the doctrine of precedent or the concept of per incuriam may apply in such cases. This is because, even if the concept of per incuriam were applicable in the present case, I have come to the clear conclusion that the submissions made by Mr Biggs based on the Strasbourg case law must be rejected.
- For the reasons I have given there was, as a matter of law, no family life or private life for the purposes of Article 8 in the present case. Both the FTT and the UT erred in law in deciding that there was.
- Accordingly I would allow the Secretary of State's appeal.
Lord Justice Sales :
- I agree. I only wish to add that I would prefer to reserve my opinion as to the correctness or otherwise of the decision of the UT in the Abbasi case referred to by Singh LJ at paras. - above.
Lady Justice Gloster :
- I also agree. I too would prefer to reserve my opinion as to the correctness or otherwise of the decision of the UT in the Abbasi case referred to by Singh LJ at paras. - above.
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