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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 (03 November 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1757.html Cite as: [2017] EWCA Civ 1757 |
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ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Monson
[2016] UKAITUR VA051732014
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SALES
and
LORD JUSTICE SINGH
____________________
Secretary of State for the Home Department |
Appellant |
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- v - |
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Chioma Goodness Onuorah |
Respondent |
____________________
Michael Biggs (instructed by Gans & Co LLP) for the Respondent
Hearing date : 12 October 2017
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Crown Copyright ©
Lord Justice Singh :
Introduction
Factual Background
The Decision of the First-tier Tribunal
"… 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."
"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."
The Decision of the Upper Tribunal
"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 [2003] EWCA Civ 31; [2003] 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.
"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)
"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 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."
"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)."
"… 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."
Material legislation
"(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"
The Right to Respect for Family Life
"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 [2003] EWCA Civ 31; [2003] 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. [14] 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 ([17]); 'neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together', sufficient ([19]); 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]).
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 ([24]) 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 ([25]).
19. Kugathas remains good law: see e.g. R (Britcits) v Secretary of State for the Home Department [2017] EWCA Civ 368, [61] and [74] (Sir Terence Etherton MR), [82] (Davis LJ) and [86] (Sales LJ). As Sir Terence Etherton MR pithily summarised the position at [74], 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'."
"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."
"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. [14] (Sedley LJ), and in the subsequent recent decision of this Court in Britcits.
"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 …"
The Right to Respect for Private Life
"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?"
"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."
"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)
"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 [2008] 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 [2004] QB 558: see Kay [2006] 2 AC 465, para 45."
"65. When it comes to its own previous decisions, I consider that different considerations apply. It is clear from what was said in Young [1944] 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 [2006] QB 831, paras 71 to 75.
66. The principle promulgated in Young [1944] 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)
Conclusion
Lord Justice Sales :
Lady Justice Gloster :